If there's no penalty for abusing the DMCA can you just abuse the DMCA right back at them?

Not really. I would have to be the proper owner of content they posted that clearly violates DMCA. I'm not about to go and break the law by abusing DMCA takedowns back at them, as they likely just did to me.

They have expensive lawyers, you don't

Microsoft has expensive lawyers on retainer, and would not challenge the takedown notice against youtube-dl.

Would Microsoft care about youtube-dl? Aside from their recent gesturing towards open source, I can't see a scenario in which they'd even say anything. Considering how often youtube-dl has to be updated and re-downloaded, they might even be happy to get that load off GitHub.

Those lawyers protect Microsoft from liabilities.

Their users are, in this case, a liability.

If they go after you for the same thing they themselves did aren't they just handing you the means to go after them?

They're not paying for your lawyers. It's that simple. Unless you have a deep war chest any competent lawyer would tell you not to pursue it.

Does the law specifically state you have to honour all requests, or only valid ones?

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).

To the best of my non-lawyer-y knowledge, neither of those is the case. Rather, if the DMCA requests are not responded to, then the host may be liable for the infringing content as well. The sequence of events is as follows, with "host" referring to the hosting service, "user" referring to the person who uploaded material, and "lawyer" referring to the person representing the copyright holder.

- 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.

I'm going to remember those points, especially the first. That is the real problem, in my opinion.

Also, from wikipedia, it looks like I was slightly mistaken. The initial claim is partly until the penalty of perjury, but only that they are authorized to act for the copyright holder. The statement on it being infringement requires only a good faith belief, and is not under penalty of perjury.

https://en.wikipedia.org/wiki/Online_Copyright_Infringement_...

So the way it works is ripe for abuse - obviously written up by the industry.