Actually no. DMCA is super one sided.

All you need for DMCA takedown notice is "a good faith belief" that reported content is infringing copyright you own (or is owned by someone you represent).

The opposing party has to prove that the claim was knowingly false and malicious for the claimant to be charged with perjury.

The opposing party has to prove actual damages in court to get any compensation. You may get legal fees back too (up to the court), but that's only likely to happen if it's obvious at the first glance that the claim was bogus.

This is all you can do to someone filing the notice. Notice doesn't even establish a jurisdiction (and cease-and-desist letter does) - so you can't counter-sue in your jurisdiction to get declaratory judgment that copyright is invalid.

Right. The DMCA was written with the advice of the copyright holders' lawyers (and by them in some cases) and activists and others fought against it as hard as they could.

Even in 1998, the US government was corrupted by money. It's worse today, but this has been happening a long time.

I suspect one could make a case, given the history of the MPA/MPAA that they've left both the realm of "good faith" and "belief" long ago. Each incident doesn't get to occur in a vacuum. You can't claim blissful ignorance forever.

Is there a history of bad faith claims in the courts? I suspect there isn't or at best very limited. It goes like this:

1. MPA sends a notice, content is taken down/disabled

2a) No response to takedown notice is sent, because the next step MPA can take after that is to take you to court. If you win the best case scenario is you recover your legal costs (but not the time). Content stays down.

2b) A response to takedown notice is sent, content gets restored. MPA doesn't go to court, unless it's a slam dunk case or it's important enough to bully someone into submission with legal costs (you pay those out of your pocket with hope of maybe getting most of it back at some point, possibly years later). Victim doesn't go to court for compensation, because it's almost certain that even with a resounding win what they recover is going to be less than legal fees.

The actual number of cases that see the courtroom is likely very, very small.

IANAL but best I can tell it is with regards to filing the takedown notice rather than taking them to court. If it is just the sending of a takedown notice, then holy fuck have they abused it.

Oh, most certainly they have abused it, no question about that.

The problem is if either side folded at notice / notice response step, then that abuse is visible only to platforms that receive those notices, not to the courts.

Could GitHub mount a case on this - that they (MPA) have been making so many of these these bogus 'good faith belief' requests over time that those words don't actually have any meaning anymore to them, and as such have been lying through their teeth when making them now?

That would make it interesting...

I think the assumption is true in this case, that "their clients are invincible / above the law." - they can lobby to create the laws themselves (which is what they did to create the DMCA in the first place) so they are in effect "above the law"

I’m not a lawyer but this feels like a fantasy to me. It seems crazy the MPA would take such a risk if they thought it was likely.

If you're an ISP, fully automated software sends DMCA notices for video content copyright violations all the time. There's no human in the loop anymore. If you see the vast bulk of these notices, a lot of them are spurious. It's a GIGO problem.

Even more entertaining, the bot has no idea what is or isn't legit. Ages ago I received a take-down from "The Internet Police" ordering me to remove all the Atari game updates from the FTP servers. Thing is, they belonged there. Atari paid us to run parts of their site, including game updates.

You have not met the staff of these orgs. It is actually not exaggeration to say they live in a media bubble where their studio chiefs are captains of industry that are infallible and are to be served with total fealty.

I once sat in a meeting where some VP at a major client asked (because they were technically daft) if it was possible -in not so many words- DDOS google because "they (google) have all this infringing content on their site"

I had to tell me boss "is anyone going to explain to that guy that what he's describing is A. not realistic and B. not legal?"

> studio chiefs are captains of industry that are infallible and are to be served with total fealty

Harvey Weinstein was taken down. I wonder if others will be.

It seems to me that they are deliberately conflating "infringing someone's copyright" and "using to infringe someone's copyright" - there's a difference between "you have my copyrighted code in your github" and "you are providing software that can be used for copying my movie" - the first is what DMCA notices are for, not the second

Your last sentence is not true. The DMCA notice can be used for anything that the DMCA covers. One thing in the DMCA is:

> linking users to an online location containing [...] infringing activity

Extremely broad, but a link to a file sharing site with infringing content is also infringing. The DMCA notice can be used against the site containing the link.

How many degrees of separation is this true for?

That’s a good question. A strict reading would imply a single one, and would mean that only TPB would be infringing because they’re the ones “linking” to the content (they don’t host it). But it could easily be construed to mean a link to TPB is also infringing.

The problem with the DMCA is that it’s so broadly worded with not enough words defined. What is the definition of “linking”? After a quick skim, I couldn’t find it. Are only hyperlinks (<a> tags) counted? Or are magnet “links” counted (despite not taking you to the content, but telling you the hashes of the content)? There’s no clear answer.

So to answer your question: we don’t know.

Notice-and-takedown provisions are not just for things that actually infringe copyright, and the "DMCA notice" part may be an extremely easy misclassification of the letter sent to GitHub. More specifically, notice-and-takedown is for user-submitted content that is illegal or tortious to knowingly distribute. Copyrighted content is the main offender here, but there are other categories, especially "anti-circumvention" tools illegal under other provisions of the DMCA.

Seems like they're moving towards thought crime than actual crime.

IANAL, and my limited legal knowledge is not of US law.

However, if you have copyrights which are of vast economic significance, to a very large number of copyrighted works, it seems unlikely that the law would would deprive you of all of that due to your suing someone for infringement. That seems highly disproportionate.

Now, don't get me wrong, I have no sympathies for the MPAA, but are you sure you're not overstating the effect of a "misuse of copyright" finding (regardless of the odds of such a finding being made)?

The penalties in these cases have historically been pretty disproportionate:

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

In Lasercomb v. Reynolds, and Practice Management Information v. American Medical Association the existence of an abusive licensing agreement allowed third parties to simply violate the copyright.

So, assuming misuse of copyright was found, precedent suggests the copyrights that were being misused would be rendered unenforceable.

A case finding that bad faith DMCA take downs amounted to misuse of copyright would be setting a new legal precedent, but, based on the facts in multiple recent DMCA takedowns, such a finding wouldn't be a huge logical leap.

The "copyrights that were being misused" seems to suggest specific copyrights. Is there precedent for voiding the copyright on Millions of works? Or even - multiple works whose individual copyright was not used specifically?

You can’t “counter-sue” for misuse of copyright, nor is it a “normal punishment.” It’s a defence you can use to avoid liability when someone else sues you, and an exceptional one at that [1]. As noted on Wikipedia, the court in Lasercomb [2] made it clear that copyright misuse does not render the copyright permanently unenforceable:

> This holding, of course, is not an invalidation of Lasercomb's copyright. Lasercomb is free to bring a suit for infringement once it has purged itself of the misuse.

[1] https://en.wikipedia.org/wiki/Copyright_misuse

[2] https://web.archive.org/web/20100516061057/http://bulk.resou...