[HN Gopher] All DMCA Notices Filed Against TorrentFreak in 2023 ...
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All DMCA Notices Filed Against TorrentFreak in 2023 Were Bogus
Author : HieronymusBosch
Score : 234 points
Date : 2024-01-01 17:09 UTC (5 hours ago)
(HTM) web link (torrentfreak.com)
(TXT) w3m dump (torrentfreak.com)
| elmerfud wrote:
| The DMCA is complete and utter garbage from its inception to its
| execution. The fact is that most of the time it seems to be used
| in a weaponized form because there are zero repercussions for
| being incorrect or failing to do due diligence before sending one
| off makes this total garbage.
|
| I am not unsympathetic to copyright holders but I have no love
| for this 100 plus year copyright nonsense. There needs to be
| teeth behind it when a false DMCA is sent because without that
| places are simply wasting money and draining resources from
| places they don't like. It's great and all that Google has deep
| pockets and can afford to review these things but it's still a
| waste of their time and a waste of their money and since Google
| doesn't print money out of thin air that comes from their
| customers.
|
| The way to fix the DMCA is to actually make this a document that
| must be filed with the courts. Require a lawyer to sign off on
| these documents file them with the courts and when they are false
| documents we're due diligence has not been done to ascertain if
| there was a true copyright violation or not we can start
| despairing lawyers and having them held in contempt of court.
| Eventually lawyers will stop doing this nonsense.
| yummypaint wrote:
| I have always said a fraudulent DMCA claim should be treated
| the same a show the FCC treats a radio station fraudulently
| broadcasting someone else's call sign. The fine should be $10k
| minimum, especially when the strike attempt is against
| something in the public domain.
| neodymiumphish wrote:
| And a good portion of that fine should be sent to the
| targeted party.
| sdenton4 wrote:
| Start spamming senators with dmca takedowns for funding pitch
| videos?
| bluish29 wrote:
| I really hope that DMCA at least be modified to add a requirement
| to submit a fee that can be recovered in case of success. Or
| maybe not recovered at all and cover the cost of investigation.
| It might help combat the bogus claims. As for the real ones,
| that's should be part of the cost of doing business. But the
| current situation that it is almost zero cost will only encourage
| more bogus and vague claims.
| bradley13 wrote:
| The fee should be enough to be meaningful - say, $100 or so. If
| the claim turns out to be wrong, the fee should go to the
| accused party.
|
| If an organization files many claims that turn out to be false,
| they should be forbidden from filing further claims for a year,
| or face massive fines.
| WesolyKubeczek wrote:
| If each one is $100 upfront for them and in my pocket
| whenever I prove them bogus, all I can say is, Bring it on!!!
| ZoomerCretin wrote:
| The law is working exactly as intended. The copyright lobby is
| very powerful. If you look at the legislation being proposed
| since 2010, it has primarily been to _strengthen_ the DMCA.
| Though Google, Reddit, Meta, Wikipedia, etc. were successful in
| organizing opposition to these bills, they have no incentive to
| lobby for the repeal of the DMCA.
| zamadatix wrote:
| I'm not sure there is a fee which is both large enough it
| significantly deters bad claims while also being small enough
| to be different than saying nobody can afford to defend their
| works on the internet via DMCA given the scale. Even if you
| have 90% accuracy in claims if you have to put out 10,000
| claims in a year that's 1 million you have to escrow with the
| expected loss of 100,000 despite rarely being wrong. And you
| may well need to do significantly more than 10,000 claims per
| year given the number of sites and users uploading and re-
| sharing content. If it were just a token value of 1 dollar or
| something then you're back to the largest corporations being
| able to file a million bogus complaints as the cost of doing
| business.
|
| Absent a balanced number this would ultimately turn into
| another debate about the place of the DMCA itself.
| dclowd9901 wrote:
| I'm pretty sure $100 per claimed violation is enough to 1)
| keep large companies from continuing to splattershot claims
| against sites and 2) small enough that it _shouldn't_ hurt
| smaller orgs or even individuals who probably have something
| near 100% claim success rates, if they do manual takedowns.
| Again, remembering they recover their "deposit" if the claim
| was successful.
| zamadatix wrote:
| That's a fair opinion and I'd be supportive of trying it if
| everyone could agree on such a number. I'm just less
| optimistic it'll work out but status quo isn't all that
| great either so trying something people think could work
| would be better than doing nothing in my book, despite my
| doubt on it.
|
| Keep in mind even if you have and ideal 100% success rate
| on claims, recovering 100% of the deposits, it's still
| going to be thousands and thousands of dollars which used
| to be liquid now relegated to holding up the revolving door
| claims processing fees. Anything less than 100% just starts
| to make it an actual money pit instead of a financial
| annoyance.
| throwup238 wrote:
| "Even if you have 90% accuracy"???
|
| You either have 100% certainty you are the rights holder and
| 100% accuracy, or you're abusing the system. Full stop.
|
| Give each rightsholder ten freebies per platform or whatever,
| but they should sure as hell be 100% accurate.
| rimunroe wrote:
| > You either have 100% certainty you are the rights holder
| and 100% accuracy, or you're abusing the system. Full stop.
|
| Sorry, but how can you be 100% certain in a system where
| fair use exists?
| wnevets wrote:
| Are fair use exclusions being considered as bogus? When I
| hear bogus I assume that means they never had any rights
| over the content to begin with.
| rimunroe wrote:
| Two people can reasonably disagree on who owns the rights
| to a derivative work, can't they?
| wnevets wrote:
| They can but that isn't what is happening according to
| the article.
|
| > The notice listed three URLs which needed to be
| "disabled immediately" along with a statement that the
| "information in the notification is accurate."
| Unfortunately, we were unable to comply with the takedown
| demands because the URLs provided were not for
| TorrentFreak.com but an entirely different domain that
| we'd never heard of, under someone else's control.
|
| I don't consider that a reasonable disagreement, I
| consider that a bogus claim.
| ascagnel_ wrote:
| Fair use is an affirmative defense -- you don't get to
| make that claim until you're in court (and even then, a
| judge has to sign off on the claim). And making a fair
| use defense ipso facto is an admission of using the work
| without permission (and thus making the preceding DMCA
| takedown valid).
| hn_acker wrote:
| > And making a fair use defense ipso facto is an
| admission of using the work without permission (and thus
| making the preceding DMCA takedown valid).
|
| Not quite right. Using work without permission is not the
| same as infringing on the copyright on the work, and a
| DMCA is a claim of _infringement_. Fair use can only be
| used as an affirmative defense, as you noted; only a
| court decides whether a use of a copyrighted work is fair
| use. But formally, fair use is not infringement according
| to the Ninth Circuit in Lenz v. Universal Music Corp.
| (2015) [1]:
|
| > "Because 17 U.S.C. SS 107[9] created a type of non-
| infringing use, fair use is 'authorized by the law' and a
| copyright holder must consider the existence of fair use
| before sending a takedown notification under SS 512(c)."
|
| Not that the Lenz ruling helped very much in practice. To
| meet the Lenz standard, the sender of the DMCA notice can
| claim in court that they believed in good faith that the
| use of the copyrighted work was not fair use. The only
| part of the initial DMCA notice that the sender writes
| under penalty of perjury is the claim of being the
| copyright holder or someone authorized to send the notice
| on behalf of the copyright holder [2]:
|
| > (3)Elements of notification.--
|
| > (A)To be effective under this subsection, a
| notification of claimed infringement must be a written
| communication provided to the designated agent of a
| service provider that includes substantially the
| following:
|
| [omitted]
|
| (vi)A statement that the information in the notification
| is accurate, and under penalty of perjury, that the
| complaining party is authorized to act on behalf of the
| owner of an exclusive right that is allegedly infringed.
|
| In contrast, a party sending a counter notice - which, I
| remind, happens before either party initiates court
| precedings - must dispute the initial DMCA notice under
| penalty of perjury [2]:
|
| > (3)Contents of counter notification.--To be effective
| under this subsection, a counter notification must be a
| written communication provided to the service provider's
| designated agent that includes substantially the
| following:
|
| [omitted]
|
| > (C)A statement under penalty of perjury that the
| subscriber has a good faith belief that the material was
| removed or disabled as a result of mistake or
| misidentification of the material to be removed or
| disabled.
|
| [1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music
| _Corp.
|
| [2] https://www.law.cornell.edu/uscode/text/17/512
| codemac wrote:
| I don't think that's reasonable.
|
| If you're a tiny rights holder, you may have produced a
| single song and are trying to make sure others pay you for
| use - but you may not be able to afford or understand what
| legal review you need.
|
| If you're a major rights holder, you may have so much
| content to protect that is so wildly popular it is
| impossible to review manually. But automated review with
| 100% accuracy is not possible.
|
| DMCA in many cases is not fair, but I don't think we as a
| global society have much of a shared view of how to handle
| digital creative content. Ease of digital replication
| doesn't match how much we generally value creative content.
| JCharante wrote:
| > If you're a major rights holder, you may have so much
| content to protect that is so wildly popular it is
| impossible to review manually
|
| Maybe companies shouldn't own copyright to a million
| different IPs then? If you don't care enough about it to
| manually review it then you shouldn't get to take it
| down.
| adhesive_wombat wrote:
| Somehow once you get to a certain scale it becomes its
| own defense. "Oh we can't police that, we're really just
| that big, don't you know". But the small guys better
| watch out, no excuses for them.
| carom wrote:
| Major rights holders should take action in the cases
| where not taking action will cost them more money than
| manual review. Right now they are spamming garbage
| notices out and offloading all cost to the content
| sources receiving their notices (websites, content
| creators, etc.). They should have to do manual review and
| be more selective about when to take action. There
| /should/ be a penalty for fraudulent takedown notices.
| Using an automated process is not an excuse.
| plorkyeran wrote:
| If manual review costs more than you're benefitting from
| sending out reviewed infringement notifications, then
| that's a pretty strong sign that the whole thing is just
| pointless busywork.
| mattlondon wrote:
| Ah but the whole argument against internet piracy is that it
| is costing creators so much money in lost sales etc.
|
| So even a small time rights holder who is losing sales
| (right? Right? Because that is what this is all about right?)
| should be happy to pay 100USD or whatever to ensure that they
| get all those thousands and thousands of lost sales that
| supposedly they lose from pirates.
| zamadatix wrote:
| Would I pay $10,000 to get a prospective $20,000 of my
| income secured? Yeah, duh, but I'm sure as hell not going
| to be happy about it.
| FireBeyond wrote:
| > with the expected loss of 100,000 despite rarely being
| wrong
|
| To those 10% you were absolutely wrong. Why should they
| suffer because you were "mostly right" with other people?
| zamadatix wrote:
| I don't think you get out of this with 0 suffering for
| everyone. That'd require some utopian method of figuring
| all of this out completely automatically with no errors for
| free. It's just not a realistic bar to measure either side
| on.
|
| As for amount of suffering an actual DMCA counter notice is
| an extremely easy thing to provide. What sites like e.g.
| YouTube do instead via backdoor agreements with IP holders
| outside the regulatory structure is where the real
| inconvenience comes from. That said, I wouldn't mind a bit
| more shift in general to make things slightly more
| difficult for copyright owners though. Just not as major a
| one as saying 100% of claims need to be valid from the get
| go or it's not viable for copyright holders.
| newsclues wrote:
| First one is free and if you are correct another free request
| is available to you.
| loceng wrote:
| I would like the same thing for international domain dispute
| process.
|
| I believe currently it's a $1000 non-refundable fee to submit a
| domain claim, e.g. you believe someone else acquired a domain
| knowing you owned the copyright, and then try to take it from
| you without having to buy it from you - whether it is or isn't
| for sale.
|
| $1000 cost + cost of whatever a bad-unethical lawyer charges to
| try to steal a domain doesn't cover the costs of time spent of
| the person you're falsely accusing - regardless if they hired a
| lawyer to get a proper legal defense - making their
| unrecoverable costs even higher - a claim submitted with no
| evidence, stuffed with repeated non-sense garbage that should
| have automatically been denied.
|
| If I wasn't dealing with other shit then I would have filed a
| complaint against the lawyer in the European country who
| initiated the wrongful claim-attack-theft attempt.
| andersa wrote:
| Wait, what? Domains can be stolen?
| nadermx wrote:
| In some very special cases, yes,
| https://www.sfgate.com/news/article/Sex-com-A-URL-All-
| Crime-.... But I assume parent comment is referring to
| reverse domain hijacking, which is a UDRP process, related
| to trademark not copyright.
| neilv wrote:
| To a small-fry person having their copyright violated, having
| to pay an upfront fee/deposit for each violating site could be
| onerous.
|
| If we're going to go to filing fees/deposits, how about make
| the remedy be a fast-track way for the violated person to seek
| _damages_ , not just play takedown whack-a-mole?
| killjoywashere wrote:
| There are ways to set up classification schemes for fee
| payments: a small fry has to pay a $1. A big fry has to pay
| an escalating value. Sort of like truckers have to keep much
| higher insurance policy values than your typical personal
| auto driver.
| margalabargala wrote:
| A one dollar fee would be entirely affordable to a "small fry
| person", while making automated "report anything the same
| color as our copyright" abuse untenable.
| ryandrake wrote:
| Along with the good suggestions by the other replies, let's
| also take into account actual DMCA takedown activity, and
| make sure we are not optimizing for an edge case. I would
| guess that "rich company spamming bogus notices" is far and
| away the most frequent case, followed maybe by "rich company
| filing legitimate notices" followed in the far distance by
| "small fry filing a legitimate notice." There are probably
| multiple orders of magnitude more bogus notices from
| companies than legit ones from small fries.
|
| The DMCA is a weapon that mainly large, rich companies use to
| beat up mainly small, relatively powerless end-users. That's
| what needs to be corrected.
|
| I'd also argue that a large portion of the US legal system is
| set up to facilitate this "big&rich beating up on small&poor"
| behavior, but that's a topic for a different day.
| neilv wrote:
| This sounds like the DMCA is solely a harm to mitigate?
|
| Is using the DMCA to legitimately defend the copyrights of
| small-fries too much of an edge case?
| ryandrake wrote:
| I'm saying it should be measured to see, before proposing
| changes. I'd love to learn that a majority of DMCA
| notices are individual artists taking down legitimate
| infringement. Somehow I highly doubt that's the case.
| neilv wrote:
| I'm more idealistic about some things than the reality,
| and I like to think that US law doesn't do "customer
| support" like a well-known FAANG. (Where it's just good
| business to let some fraction of a percent of people be
| wrongly locked out of their accounts, rather than invest
| in covering those edge cases.)
|
| https://en.wikipedia.org/wiki/File:EqualJusticeUnderLaw.j
| pg
| doctorpangloss wrote:
| > I would guess that "rich company spamming bogus notices"
| is far and away the most frequent case, followed maybe by
| "rich company filing legitimate notices" followed in the
| far distance by "small fry filing a legitimate notice."
|
| You are guessing wrong.
| chipt4 wrote:
| What an excellent rebuttal. Care to provide some sauce?
| Spivak wrote:
| "I think it's X with no evidence"
|
| "I think it's Y with no evidence"
|
| "Woah woah there, how dare you disagree with the
| groupthink, are you prepared to cite some sources?"
|
| Why does X but not Y get to be presumed true until proven
| otherwise? Because we really want X to be true okayy.
| jorams wrote:
| I think it makes more sense to disqualify abusers from the
| entire takedown system. The DMCA takedown process takes a
| guilty-until-proven-otherwise approach, and companies like
| Markscan from the article can clearly not be trusted with that
| power. After maybe 3 false takedowns the receiver should be
| allowed to assume anything they send is bullshit.
|
| There should also be consequences for copyright owners choosing
| to be represented by a large number of such abusers, but that's
| a lot more complicated and would require more due process.
| GartzenDeHaes wrote:
| Why do copyright holders get due process but not accused
| infringers?
| Nifty3929 wrote:
| Because they are not being prosecuted for a crime, and are
| not being subject to legal penalties. They are not facing
| jail time or a legal judgement. The platform just takes
| them down.
|
| I'm not saying this is right, just that this is the reason.
| HideousKojima wrote:
| >I think it makes more sense to disqualify abusers from the
| entire takedown system.
|
| The problem with this idea is that there is no "system" you
| literally just send an email/letter/whatever claiming that
| you're the rightsholder.
| zamadatix wrote:
| Well, it starts via such a notice. You can just as easily
| send a counter notice. The actual violation process occurs
| in the courts though and that means you could never
| actually do anything anymore even if you were spamming out
| notices without getting caught.
| nadermx wrote:
| If anyone is curious, currently Yout v RIAA[0] is awaiting oral
| arguments in the US 2nd circuit court of appeals, Yout having
| lost in district court. This case centers around the DMCA
| circumvention notice's sent by the RIAA
|
| [0] https://www.courtlistener.com/docket/66697744/yout-llc-v-
| rec...
| sjfjsjdjwvwvc wrote:
| I may sound like a broken record but copyright needs reform.
|
| It does not fulfill its purpose and DMCA is just one symptom of
| many other issues that stem from the steaming pile of garbage
| that is copyright in the 21st century.
|
| edit: typo
| Lvl999Noob wrote:
| Someone needs to file DMCA notices for the big corpo stuff. Do
| it as a big swarm and get the whole websites down. Only then
| will there be actual action to reforming it.
| Nifty3929 wrote:
| What do you believe is the purpose of copyright law? Genuine
| question, I'm curious to hear your take.
| kayson wrote:
| Does torrentfreak have any legal recourse? If the notices keep
| saying the information is accurate under penalty of perjury, when
| clearly its not, it seems like they should be able to do
| something...
| cesarb wrote:
| > the notices keep saying the information is accurate under
| penalty of perjury, when clearly its not
|
| The part which is "accurate under penalty of perjury" is only
| that "the complaining party is authorized to act on behalf of
| the owner [...]"; it excludes the part which says "the
| information in the notification is accurate" from that.
|
| Yes, it means that they can lie as much as they want on the
| "you are violating my copyright" part as long as they are
| truthful when saying "this copyright is mine".
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(page generated 2024-01-01 23:00 UTC)