Yes, contract law. You could require affirmative consent to such terms before processing a takedown to get around that problem, but then, having presented a facially-valid takedown, you could just be sued for copyright infringement for any legitimate notice if the copyright owner didn't agree to the terms, because you'd have taken yourself outside the safe harbor.
Well, yes, the law. How would you enforce a contract which binds the claimant to paying a fee? What if the claimant doesn't want to enter an agreement where he has to pay? Do you refuse his takedown request? Well congrats, you just made yourself liable.
Their users are, in this case, a liability.
I know most will simply honour it immediately, and reinstate content if it was not found to be infringing, but I bet that’s more of a CYA measure.
To your point: I could simply have another link for them to confirm their request, with my conditions clearly stated (ie. a contract).
- User uploads material to the host. Host did not make editorial decisions on the content, and is therefore not liable for infringement in the content (safe harbor).
- Lawyer sends DMCA takedown notice, attesting that they believe the content infringes lawyer's copyright. (Does not have to actually infringe, just need to be a statement that they believe it does.)
- Host receives notice, and now has a choice. If they take the material down, they have no legal liability to either user or lawyer. If they leave it up, lawyer can sue host along with user for infringement.
- (Assuming host takes material down), host then notifies user.
- User can respond with a counter notice, under penalty of perjury, they believe the takedown notice was mistakenly given.
- Host tells lawyer that a counter notice was given.
- Lawyer now has a choice. Option A is to file a lawsuit against user. In that case, material stays down until the lawsuit concludes. Option B is to sit in sullen silence. If no lawsuit is filed in 14 days, host can put material back up without any liability.
There are a couple major problems with this. The original DMCA request isn't under penalty of perjury, but the reply is. The original DMCA request doesn't require a copyright to be held, only a "good faith belief" that it infringes. The duration of 14 days may have made sense in 1998, with large companies being the only media producers, but now that takes a video down for several times the duration of interest, effectively killing it.
> - The original DMCA request isn't under penalty of perjury, but the reply is.
> - The original DMCA request doesn't require a copyright to be held, only a "good faith belief" that it infringes.
> - The duration of 14 days may have made sense in 1998, with large companies being the only media producers, but now that takes a video down for several times the duration of interest, effectively killing it.
https://en.wikipedia.org/wiki/Online_Copyright_Infringement_...
If I were on the receiving end of such a request, I would confirm receipt with a response stating that any invalid requests will incur a fee of $50,000 (per request) unless they wish to cancel it immediately, and provide a link to do so. Failure of them to cancel it once processed if and when it’s found invalid: they’re on the hook for the fee.