from the apparently-good-faith-has-no-due-diligence-requirement dept.
Kim Dotcom's album has been targeted multiple times by takedown requests. IFPI and others are claiming that it infringes the rights of their artists. TorrentFreak investigated and it looks like someone had put a link to Kim Dotcom's album alongside the name of other artists.
When we previously covered the issue, Mega stressed that the takedown requests were clearly mistaken. The company accused IFPI of not doing their homework and doubted the accuracy of their notices in general.
However, since the takedown notices kept targeting the same link, there was a good chance that these mistakes were orchestrated in some way. Assuming that someone was making IFPI and others believe that the link pointed to albums of other artists, we decided to do some research.
Eventually we stumbled upon a series of Pastebin pages where the URL of Dotcom’s album is linked to titles of other artists. Several of the artists mentioned in the pastes are the same as the one’s IFPI listed in their DMCA notices, so this would explain the mistakes.
The above is concerning for several reasons. First of all, it shows that IFPI and others don’t verify the legitimacy of their takedown notices. This means that pranksters can easily get them to censor legitimate content.
Secondly, Mega usually can’t check the validity of a claim, or it simply doesn’t know whether or not a user has permission to publish it. So they have very little options to stop the abuse.
“Mega aims to process all takedowns promptly, within a few hours. It is impossible to verify the claims as the files are encrypted so we don’t know the contents (unless the full link is provided with the key included), and we can’t verify if the person has a valid ownership/license or not,” a Mega spokesperson told us.
(Score: 2) by physicsmajor on Tuesday September 23 2014, @10:31PM
Nothing has the weight of law behind it unless it's a true DMCA request. If these are just bullshit notices, ignore them and flaunt them openly - name and shame.
If they're really DMCA requests, they committed perjury. Countersue, and do not settle. Take these fuckers to the cleaners.
(Score: 2) by n1 on Tuesday September 23 2014, @11:03PM
I am not a lawyer, so someone please correct me if i have this wrong.
A DMCA can be submitted "in good faith", so as long as you don't do your due diligence, submitting bullshit notices is perfectly legal. The perjury only seems to really kick in if the target disputes it (that is under penalty of perjury), and then the party alleging the infringement chooses to respond to that. They can just ignore the dispute and let the claim die and face no penalty (after doing due diligence to find they have no grounds for a claim).
(Score: 0) by Anonymous Coward on Tuesday September 23 2014, @11:21PM
That is exactly my understanding too.
It is totally fucked up that they can put liability onto the service provider without shouldering any liability for 'errors' themselves.
I have a basic test for fairness that works in nearly any case -- if the situation were reversed would each party be just as happy?
I think it is obvious that the MAFIAA's lawyers would not stand for a similar deal if they were the target of millions of automated accusations of selling songs containing unauthorized samples, especially if the accuser wouldn't even tell them enough details so that they could check for themselves.
(Score: 3, Insightful) by frojack on Tuesday September 23 2014, @11:07PM
And don't discount the possibility that Dotcom and/or his minions are posting some of those links as a honeypot to embarrass big media, and Don't discount the possibility that Big Media's minions are posting them to harass Dotcom.
By the way: Can you quote a single example where anyone was fined even a token amount for false takedowns? In general it doesn't happen.
The courts have pretty much chosen sides on this issue.
Until some ambitious DA decides to go after the takedown abusers with civil rico penalties nothing will change.
No, you are mistaken. I've always had this sig.
(Score: 2) by MrGuy on Wednesday September 24 2014, @02:59PM
There is a clause in a DCMA takedown notice that must be sworn to under penalty of perjury. However, most people incorrectly believe that there is a requirement to swear under penalty of perjury that the material that is the target of the notice infringes.
In actual fact, if you look at the notice requirements, [wikipedia.org] you'll see that the ONLY thing that's required to be sworn to under penalty of perjury is that the complaining party is the owner, or authorized to act on behalf of the owner, of the allegedly infringed content. It is NOT a requirement to swear that the alleged content ACTUALLY infringes.
Let's say there's a takedown notice filed by Sharkey and Sharkey, LLC against a YouTube video of Weird Al's Amish Paradise as "substantially infringing" Coolio's Gangster's Paradise.
Sharkey and Sharkey need to swear (under penalty of perjury) that they represent the owner of the distribution rights to Gangster's Paradise (they'd probably be representing the label that published the album). But they are only required to claim a "good faith belief" that Amish Paradise ACTUALLY infringes Gangster's Paradise. They only commit perjury if they DON'T actually represent the rightsholder.
The "good faith belief" is what protects most filers of takedown notices. "Our algorithm is correct 90% of the time! And it flagged this content as infringing, so we acted in good faith by filing the notice." There's no requirement that they have DEFINITIVE evidence of infringement, nor that a human reviewed the infringement, nor that there's no plausible copyright "safe haven" (such as parody) exemption to their allegedly infringed right. Just that they have a "reasonable good faith" belief.
I don't love it either, but (IANAL) as far as I'm aware that's the law.
(Score: 2) by gman003 on Tuesday September 23 2014, @11:49PM
"We're sorry, but due to a large number of false notifications, takedowns from your corporation are no longer accepted by our automated system. A copyright representative has been assigned to your case and will process your request shortly."
Then hire one intern, give them the job title "copyright representative", and tell him to sort through the pile of notifications. No deadline. No overtime. Take an hour for lunch.
Curiously, while the law defines the time period in which you must respond to a counter-notification (17 USC 512.g.2.C "not less than 10, nor more than 14, business days following receipt of the counter notice"), no such rule exists for takedown notifications. 17 USC 512.c.1.C states you must "respond expeditiously", but that it not strictly defined. I think that, as long as you can show that they previously operated in bad faith, they wouldn't have much of a case against you for your own possibly bad-faith dealings. A defense of "we're just doing our due diligence to prevent abuse" should get you off scot-free, but my faith in the judicial system isn't so strong as to think that will actually be the case.
(Score: 0) by Anonymous Coward on Wednesday September 24 2014, @12:17AM
(Score: 3, Funny) by francois.barbier on Wednesday September 24 2014, @12:25AM
DOWNLOAD "Coldplay - Ghost Stories" FOR FREE [ifpi.org]
Am I doing this right?
(Score: 0) by Anonymous Coward on Wednesday September 24 2014, @12:51AM
If only there were I dunno, consequences for making false claims or something.
(Score: 1, Insightful) by Anonymous Coward on Wednesday September 24 2014, @08:13AM
Guess what happens if you try to pull a mirror stunt and falsely DMCA something the big fuckers make? Absolutely nothing happens to them but you do go to jail for a long stint or at least pay a massive fine for few generations.
The law is nothing but a weapon the rich and the powerful wield against the rest of us.