Technology

One of the biggest problems with IP law, the DMCA included, is that it's all built on a foundation of presumption of guilt. Unlike the rest of our legal system that presumes innocence by default, IP law does the opposite. Once an accusation is made, guilt is presumed, and the target must prove they aren't guilty, with punishments being enacted first. Get a takedown notice, and you must comply, THEN you can challenge it. But in the meantime, your store, your video, your song, etc. is offline if-and-until you can prove the takedown is wrong. All assuming you CAN fight it, that you have the resources to do so, and that the platform you're on has sensible avenues of recourse.

All of it protects the wealthy and powerful who can lob takedown requests with impunity since few are going to be able to fight back. We need a complete overhaul. We need to change the presumption of guilt in IP law. And we need to allow people to fight back and defend themselves before their shit is taken down.

All DMCA takedowns have the perjury clause. What is the penalty for perjury in a US federal court?

Because it’s about time we saw it enforced here, setting a precedent to be used in the many other cases of DMCA misrepresentation that exist.

“[F]or unsuspecting merchants who may be unfamiliar with the DMCA, a sudden onslaught of takedown notices can result in the termination of their entire store under Shopify’s repeat infringer policy,” Shopify explains.

First of all, the person doing this is an asshole. Filing false DMCA claims is a dick move and can fuck with people's livelihoods.

Second, if this is something that causes harm due to your policy, perhaps it's time to review that policy and the ways you enforce it.

And third, the DMCA itself needs a serious review of how it needs to be handled and how to reduce harm on the innocent people affected by false claims.

The DMCA is so fucking contradictory about these subjects too. For example, per the DMCA, a party that misrepresents themselves in a takedown claim:

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

This should mean you can sue the person for absolutely every bit of damage you suffered + whatever legal costs you encouraged in the process when you are delivered an illegitimate takedown. Reality is though, when regulatory duty is foisted onto private actors like this, that's just making it harder to get access to your rights.

The DMCA limits liability for platforms that host infringing content so long as the platform does not have knowledge the content infringes... but it provides NO guidance for how the platform should ascertain that an infringement claim is legitimate -- and waives their liability for making an erroneous determination.

It mandates a counter-notification process, but in this process the content will stay down for 10-14 days -- which in the world of social media can be an absolute death sentence. In no small part because the service provider's own algorithms will now bury that content when it is restored. And of course, DMCA has zilcho recourse for algorithmic burying (of course the writers weren't even aware of these potential effects).

And you cannot have an anonymous of pseudonymous counter-notification. Must be your full name, address, and phone number on it. Which will theoretically get handed off to the person that put in the fake claim against you as part of the process! Fucking madness! I don't know if this is enforced as written, but as written this is what it says.

There's probably a lot more to be said, but christ it is a poorly written law. And this is all from Section 512, which is often viewed as the only "good part" of the DMCA.

The entire DMCA needs to be rewritten from scratch.