Re:Proctorio used DMCA to take down a student’s critical tweets
by dotancohen on Thursday November 05, 2020 @09:33PM
(#25004333)
> - 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.
Re:Proctorio used DMCA to take down a student’s critical tweets
by MereInterest on Thursday November 05, 2020 @11:22PM
(#25004866)
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_...
Re:Proctorio used DMCA to take down a student’s critical tweets
by sebastien_b on Thursday November 05, 2020 @11:38PM
(#25004952)
So the way it works is ripe for abuse - obviously written up by the industry.
- 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.