There's an interesting part of this DMCA process that expects the claimant to issue a good faith report, under penalty of perjury. The thing is, with full access to the source code, they can't make any credible claim to Warner Bros. copyright being infringed.
The punishment for lying to the government about this appears to be perjury. I would level an accusation of perjury at Warner Bros Group for deliberately engaging in anti-competitive and anti-social behavior by attempting to curtail the efforts of an innocent third party.
IANAL but this looks illegal and the company should be forced to answer for its lying, at minimum.
> this DMCA process that expects the claimant to issue a good faith report, under penalty of perjury.
This is a common misunderstanding, but if you read the text of the statute it's clear that the "penalty of perjury" only applies to having authorization:
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. -- https://www.law.cornell.edu/uscode/text/17/512 c.3.A.vi
Even worse, punishment for misrepresentation requires proving that the DMCA filer "knowingly" materially misrepresents that the material is infringing (see f. "Misrepresentations"). Sloppiness and not double checking that your automatically-generated claims make any sense should be punished, but instead it's is a valid defense.
AFAIK the perjury bit pertains only to the declaration of being authorized by the "owner" of the named work. Not for any level of diligence when identifying URLs, nor for the claiming of infringement. There is very little equity in the DMCA - the law was essentially written and purchased by the media cartels. But it seems to be less lethal than the CFAA, so at least that is some kind of progress.
I believe that's how it works too, it's worded very conveniently for the copyright lobby. The rest of the DMCA notice just falls under "good faith belief". There is a section about misrepresentations that starts with "Any person who knowingly materially misrepresents...", but it would be up to the accused to prove the claimant intentionally lied.
The remedy isn’t (currently) to punish the issuer. It’s to file a counter notice. I’ve been through this process against Meta. It sucked, and killed my project’s early momentum. But it was restored within a week or two after we filed.
It may seem like this system isn’t fair. It certainly isn’t. But it’s the best we have, because the system was not designed for the modern era. https://youtu.be/1Jwo5qc78QU?si=sZS6s53w4mZrJ3Vk
It’s lucky we even have a recourse like filing a counter notice.
I’ve wanted to make a non profit that offers up counter notices as a service. Basically, let people donate, and whenever someone’s project (like this unfortunate web browser) gets issued a DMCA claim, they’d be able to get a counter notice drafted and filed. It’s not cheap to hire a lawyer to do it, but you pretty much have to, which was the most unfair part. The companies filing the takedowns have lots of resources, but the targets often have substantially none.
That idea is probably too much work, but someone should do it. We need an organization to go to bat for creators. Or at least an organization that gives the creator enough legal rope to hang themselves if the entity making the claim decides to file a lawsuit, which is sometimes a real possibility. But the creator should get to decide whether to take on that risk without having to pay thousands of dollars first.
> because the system was not designed for the modern era
I don't think that's right; I believe the DMCA is designed for the modern era, and from the point of view of the large copyright holder companies and groups who pushed for it, is very much working as intended.
It is completely unjust and unfair, no doubt. It was never intended to be.
The only lawsuit I know of dealing with an issue similar as such is Yout v RIAA, which Yout lost in district court level and is now on appeals in US 2nd circut.
Cause the law is highly staked in the direction of the claimant with DMCA. First, only the real copyright owner can go to court against them (so, you cannot take look, find out they aren't the copyright holder and then sue them), then you need to see the case through and if there's anything these big companies have it's dozens and dozens of lawyers on the clock, while the other side will probably have to pay per hour. And even if you make it to the end they'll probably get off on some technicality, cause "oh, we really, really thought we had the copyright, we are so sorry" and even if not any damages will be laughable compared to the upside of them filing claims left and right. It's just a shitty system all around. Exactly as intended by the companies that pushed for it.
(IANAL. All based on reading up on the topic once when I had the same thought)
DMCA takedown requests are not submitted to the government. They would be lying to Google.
>under penalty of perjury
This is referring to lying about being authorized to act on the copyright owner's behalf.
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.
So I can issue frivolous DMCA complaints against, say, YCombinator, and by law it has to be taken down until a counterclaim or X amount of time has passed, putting the onus of responsibility on innocent people? And as long as I'm actually the rightsholder, government will do nothing to address bad faith claims? The standard for proof is practically impossible, and you don't need a valid claim to negatively impact innocent people.
It's a law that has no business existing; I'd argue the moral solution is to simply not honor it. We need to push back against copyright and IP in its entirety because it's clearly not serving its purpose if you can just cancel some random guy's project because you don't like it.
I'd like to see DMCA updated with a simple addition:
Anyone who fails to file a legal claim within 10 days after receiving a counter-notice shall be liable for $10,000 to the company or person the DMCA claim was made against and $2,000 to the internet service that was sent the DMCA claim. The liability for failing to file legal action is levied jointly against the agent filing the DMCA claim and the claimant.
I think this would quickly force some integrity, and would especially help content creators. It strikes at the heart of the injustice in the DMCA claim system: the agent always tries to claim "oopsie", and after that the claimant will try to blame the agent. In all reality, if you are the claimant, you need a very competent agent or you need to be doing it yourself. It is enough money to be worth going after.
Just as copyright law provides for mind-boggling damages, the penalty for filing a fake, frivolous or fraudulent DMCA notice should have some serious teeth. Every DMCA notice I've dealt with was fraudulent (not really representing the copyright holder) or simple frivolous (i.e. a DMCA take-down for using a trademark).
I run a somewhat popular website whose assets were illegally copied by some small time firms based out of India to build some of their own products. While I was able to mitigate this with a DMCA, I shudder to think what would happen if I were to receive a bad faith counter claim under the proposed clause, since I don’t make anywhere near that amount of money.
Right now, all that happens is the content goes back online which is simply no where near enough. Perhaps some kind of "Ernest money" should accompany a takedown request that would be split between to the person or entity that the takedown was filed against and the service provider?
This might really help with fraudulent/frivolous takedowns from jurisdictions that are difficult to enforce US court rulings in.
BTW many copyright law firms will work on contingency if the case is clear, and your evidence of ownership is solid.
For services subject to DMCA, it's often existentially risky to try to filter valid vs invalid notices, due to the potential loss of safe harbor, and much easier to just indiscriminately act on them all to the detriment of users. As an agent, you could offer filtering services, and work with an insurer to establish filtering standards and insure your clients against damages caused by loss of safe harbor due to incorrect filtering decisions.
Issuing a false DMCA should absolutely be lethal to whatever lawyers career signed it. It’s just perjury/fraud/bullshit and the system could be adapted to fix existing issues just by enforcing some of the legal professions typical standards.
That is a fascinating approach. Who signed this DMCA take down notice? Ladies and gentlemen, start your word processors to complain to his/her bar association and state attorney general. Start the DMCA Black List to name and shame.
This seems like a mildly snarky response, but really - some lawyer signed this, knowing they were submitting a DMCA for showing a website in a browser. It should be dealt with extremely harshly.
If loading the Warner Bros home page isn't allowed, Chrome might be on the chopping block next. I hope the Google Chrome team has some internal contacts at Google to prevent Chrome from being removed from the play store due to DMCA abuse.
Is there any reason for Google to treat this app differently than any other browser? The only difference I can think of is that this is run on televisions.
I don't think Google treat this app any differently than any other.
The problem isn't Google per se, it's the inadequacy between a mass distribution platform, and an inadequate legal framework. There is probably, at any time, thousands of apps being wrongly shutdown, and thousands infringing copyrights.
The whole concept of these distribution platforms (Play Store, App Store, YouTube, you name it) is to scale beyond the capabilities of what even an industrialized manual system could do. Yet the laws (especially related to IP) are intrinsically interpretation based.
There is no intersection of such two systems that wouldn't massively tip the scale for one or the other party.
The only possible solutions are to
- scale down these massive distribution platforms (unlikely)
- accept their drawbacks and the business risk to depend on them (most likely)
- find an other way of defining IP, such as some forms of resistant watermarks (unlikely)
- move all distribution platforms to some form of DRM such that extracting content is impossible (most likely)
How is this not an abuse of market power where the Google controlled app store allows other browsers to be banned for reasons that their own browser would never be automatically banned for?
If Windows automatically started blocking access to Chrome for up to 2 weeks at time while Google appealed false take downs everyone would be flipping their shit, including governments and justice departments
To be fair I used this downloader to get a modified version of the YouTube app onto my TV. Most guides / reddit posts recommend the download feature to side load apps. Not saying that the lawsuit is justified, but I guess that's how they found the app.
I mean, maybe? Presumably there's some level of human review on counter-claims, and not everyone has the deep expertise of a rando HN commenter. It probably went something like "Claim says that the app downloads DMCA content ... Yup, it's a downloader."
I mean, sure, you want everyone to get everything right. But if you're an app vendor, maybe try to help out the reviewers at least a little by not naming your app for a TV device "Downloader"? Think of it like defensive driving.
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The punishment for lying to the government about this appears to be perjury. I would level an accusation of perjury at Warner Bros Group for deliberately engaging in anti-competitive and anti-social behavior by attempting to curtail the efforts of an innocent third party.
IANAL but this looks illegal and the company should be forced to answer for its lying, at minimum.
This is a common misunderstanding, but if you read the text of the statute it's clear that the "penalty of perjury" only applies to having authorization:
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. -- https://www.law.cornell.edu/uscode/text/17/512 c.3.A.vi
It may seem like this system isn’t fair. It certainly isn’t. But it’s the best we have, because the system was not designed for the modern era. https://youtu.be/1Jwo5qc78QU?si=sZS6s53w4mZrJ3Vk
It’s lucky we even have a recourse like filing a counter notice.
I’ve wanted to make a non profit that offers up counter notices as a service. Basically, let people donate, and whenever someone’s project (like this unfortunate web browser) gets issued a DMCA claim, they’d be able to get a counter notice drafted and filed. It’s not cheap to hire a lawyer to do it, but you pretty much have to, which was the most unfair part. The companies filing the takedowns have lots of resources, but the targets often have substantially none.
That idea is probably too much work, but someone should do it. We need an organization to go to bat for creators. Or at least an organization that gives the creator enough legal rope to hang themselves if the entity making the claim decides to file a lawsuit, which is sometimes a real possibility. But the creator should get to decide whether to take on that risk without having to pay thousands of dollars first.
I don't think that's right; I believe the DMCA is designed for the modern era, and from the point of view of the large copyright holder companies and groups who pushed for it, is very much working as intended.
It is completely unjust and unfair, no doubt. It was never intended to be.
https://www.courtlistener.com/docket/66697744/yout-llc-v-rec...
(IANAL. All based on reading up on the topic once when I had the same thought)
Deleted Comment
>under penalty of perjury
This is referring to lying about being authorized to act on the copyright owner's behalf.
It's a law that has no business existing; I'd argue the moral solution is to simply not honor it. We need to push back against copyright and IP in its entirety because it's clearly not serving its purpose if you can just cancel some random guy's project because you don't like it.
Anyone who fails to file a legal claim within 10 days after receiving a counter-notice shall be liable for $10,000 to the company or person the DMCA claim was made against and $2,000 to the internet service that was sent the DMCA claim. The liability for failing to file legal action is levied jointly against the agent filing the DMCA claim and the claimant.
I think this would quickly force some integrity, and would especially help content creators. It strikes at the heart of the injustice in the DMCA claim system: the agent always tries to claim "oopsie", and after that the claimant will try to blame the agent. In all reality, if you are the claimant, you need a very competent agent or you need to be doing it yourself. It is enough money to be worth going after.
Just as copyright law provides for mind-boggling damages, the penalty for filing a fake, frivolous or fraudulent DMCA notice should have some serious teeth. Every DMCA notice I've dealt with was fraudulent (not really representing the copyright holder) or simple frivolous (i.e. a DMCA take-down for using a trademark).
This might really help with fraudulent/frivolous takedowns from jurisdictions that are difficult to enforce US court rulings in.
BTW many copyright law firms will work on contingency if the case is clear, and your evidence of ownership is solid.
It is simply that Google is indifferent to the DMCA requests.
Other companies such as Shopify, take action. They've recently filed a lawsuit over "illegal" DMCA take down notices [1] (credit where credit is due).
[1] https://torrentfreak.com/shopify-files-lawsuit-over-illegal-...
There are also many instances where DMCA takedowns are denied (not including the counter notice process). There's a bunch of public data on this here: https://transparencyreport.google.com/copyright/overview
The problem isn't Google per se, it's the inadequacy between a mass distribution platform, and an inadequate legal framework. There is probably, at any time, thousands of apps being wrongly shutdown, and thousands infringing copyrights.
The whole concept of these distribution platforms (Play Store, App Store, YouTube, you name it) is to scale beyond the capabilities of what even an industrialized manual system could do. Yet the laws (especially related to IP) are intrinsically interpretation based.
There is no intersection of such two systems that wouldn't massively tip the scale for one or the other party.
The only possible solutions are to
- scale down these massive distribution platforms (unlikely)
- accept their drawbacks and the business risk to depend on them (most likely)
- find an other way of defining IP, such as some forms of resistant watermarks (unlikely)
- move all distribution platforms to some form of DRM such that extracting content is impossible (most likely)
The future is not bright.
If Windows automatically started blocking access to Chrome for up to 2 weeks at time while Google appealed false take downs everyone would be flipping their shit, including governments and justice departments
I mean, sure, you want everyone to get everything right. But if you're an app vendor, maybe try to help out the reviewers at least a little by not naming your app for a TV device "Downloader"? Think of it like defensive driving.