Microsoft Accuses Microsoft of Copyright Infringement | Hacker News Reader

Microsoft Accuses Microsoft of Copyright Infringement

pcworld.com

120 pointssamspenc34 comments

While this incident is entertaining, as the article points out, more often it is damaging to the "offender" of an errant takedown. DMCA takedowns are filed under the condition of perjury, I don't understand how a. you can meet the review standard for perjury in an automated fashion or b. how there isn't any punishment for those who file errant DMCA takedowns especially in an automated fashion.

Punishment for filing false DMCA takedown notice would either require: 1) An civil action for damages by the harmed party, or 2) A criminal prosecution for perjury.

I'm guessing that the vast majority of people harmed by false DMCA takedown notices either do nothing or, if they act at all, file a counternotice with the content host and leave it at that.

The problem may not be the absence of available sanctions, but the fact that people don't seek to apply the available sanctions.

The EFF has tried to do so, but had trouble proving damages:

http://arstechnica.com/tech-policy/2012/10/after-five-years-...

That article does not indicate that they had trouble proving damages, it said that they were restricted in the damages they could ask for, and that the difficult issue was proving difficult was proving "subjective bad faith".

That seems to also accurately reflect the most recent action in the case, the order denying both parties motions for summary judgement in January [1][2].

[1] https://www.eff.org/node/73102 [2] https://www.eff.org/deeplinks/2013/01/lenz-v-universal-baby-...

Hmmm…

I wonder what an "automated DMCA counternotice filing service" would look like?

I wonder if there's some entirely legal and moral way to ensure erroneous DMCA takedowns have non-zero costs involved for the parties serving them (while having as-cloase-as-practcal to zero cost for innocent sites defending against them)?

Check out the DMCA link at the bottom of this very site. It's fairly awesome.

"If you believe that content residing or accessible on or through the our website (“Services”) infringes a copyright, please send a written notice (by fax or regular mail) to the Designated Agent at the address below. You may not communicate the information specified below by email. Please note that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent that material is infringing your copyright(s)."

Neat as that may be in concept, the process laid out in the act is the one that must be followed, and it can't be amended by an individual/business posting some other process on a webpage. As far as I can recall, the DMCA does not specify that counternotices must be filed by mail. Designated agent registrations include an e-mail address. If YC chose to ignore a counternotice because it didn't like something about how it was delivered, but that delivery conformed to the act's requirements, then YC would not have safe harbor protection and would remain directly liable for copyright infringement.

I wonder if it would be worthwhile to push for prosecution of perjury for automated takedowns, though. Automated detection with manual review seems more reasonable, though, insofar as copyright is reasonable to begin with.

A takedown notice needs to be certified by a person. Sue that person, it's irrelevant if the search was automated. Next time they won't use automated and inaccurate takedowns.

If they're certifying without actually checking anything, then they deserve perjury charges, yes.

> DMCA takedowns are filed under the condition of perjury

Which means that you must believe what you claim to be true. It doesn't mean there's any penalty whatsoever if what you're saying is found to be bullshit after the fact.

But there has to be some degree of good faith in what you believe.

http://plato.stanford.edu/entries/ethics-belief/

Alright, even so, I don't understand how an automated system can "believe" anything, in which case, all automated filings would be in violation.

The same way a corporation is a person. It's an abstraction to make rich people richer while limiting liability.

I've said it before and I'll say it again.

If an entity issues a DCMA take down notice that turns out to be erroneous, they should be charged a fine. That find should grow exponentially for each URL impacted by that erroneous take down (i.e. when they knock out 100 domains while trying to take out one)

Not sure about that. I feel like someone who spams 100 takedown notices, and only 1 of them is legit, should be treated differently from someone who legitimately sent out 1000 takedown notices, and 900 were legit.

Err, no.

In the UK we have a thing called Northampton bulk court. This is an automated court which is used to issue fines and summonses locally. people can actually integrate with it with their billing systems.

I've had three summonses for things that weren't valid/legitimate. Each one of these costs me literally a day to sort out.

The cost of each of these "misses" costs someone time and money. They should be fined for each invalid claim.

An alternative would be to have an 'administrative fee' charged on a per-notice basis. Then you can refund the fee if the claim is found to be valid.

There is a fee per claim. They just pay it.

Your username is quite apt.

The exponential scheme is easily avoided with the use of shell companies.

Am I reading this right? The fifth result on the Google Transparency report[1] (the live updated page) is a request from Cisco to take down Cisco urls:

http://www.chillingeffects.org/notice.cgi?sID=1064850

[1]http://www.google.com/transparencyreport/removals/copyright/

This is their learning portal. It appears as though something was posted that shouldn't have been; I'm assuming that they cleared these internally, then wanted Google to remove them from their index to remove the sensitive info from the search previews and cached copies.

Related, this is interesting: http://cisco360.cisco.com/popup/

http://en.wikipedia.org/wiki/Autoimmunity

This is simply an unusually explicit example of how the current copyright system harms everyone, including its own advocators.

This is like the 3rd time this story has appeared on HN... it's all very droll.

As the article states, the number of DMCA requests has increased almost 1500% over the past year.

We can only hope that Google kindly complies.

If Google had complied, could Microsoft have claimed that Google was censoring results from Microsoft? If not publicly, behind closed doors perhaps.

Funniest thing is that Microsoft sponsors the article!

Google should sue for every inaccurate DMCA takedown it receives. Not practical, but it would send a few firms broke, and stop the flood.

Why don't we just charge a meagre tax, perhaps $0.10, per DMCA request? This would reduce spamming significantly, while any genuine requests would be more than worth that sum.

This is no better than fining abuses and in many ways worse.

Is this the "serious fun so intense and delightful that [it] will blur the line between reality and fantasy", that Ballmer promised us recently?

Oh the irony... It would be funny if it wasn't so sad...

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