Isn't perjury the act of swearing to something that isn't true? He did do that. Whether he was required to swear to that is surely a separate question. He wasn't required to swear to that, but he did.

> Isn't perjury the act of swearing to something that isn't true?

Perjury is lying under oath. The statement must be made under oath to be eligible for perjury. And making a statement under oath is a formal process, dictated by court or law.

You cannot make yourself be under oath. Swearing something to be true doesn't count, unless there is a legal context that makes it true. Swearing in a witness in court makes that happen. Some laws (like DMCA) make statements in certain documents oathful. But it is the law, not the document, that decides that.

It seems like "swearing" has been overloaded in your jurisdiction?

In my common law country, at least, when you swear something, it's an oath, and only an oath. We have a non-religious variant, no almighty God required, where you solemnly affirm to the same effect, and false information provided is perjury, punishable by up to 7 years imprisonment (if you perjured yourself in a judicial proceeding), unless you perjured yourself to get someone falsely convicted for a serious crime, then it's up to 14 years.

We also do statutory declarations, where you only declare it to true, but false information in one of those is still a crime, with a lesser penalty.

Oh, and we have a fun wee clause that maybe your jurisdiction doesn't? Where if you swear an oath, it can still be perjury even if it's not being sworn in a judicial proceeding. Only 5 years though.

So yeah, what does "swear" actually mean in the US? I don't get how you'd swear a DMCA takedown without your oath being taken. I figured if it was legit sworn, they'd do the usual "sworn this day X at BLA, witnessed/authorised/etc by Z"

Are they just trying to sound legal and scary, or is that format required in a takedown?

Not a lawyer, nor do I play one on TV, but I've been an occasional customer of the judiciary sufficiently to pick up the vagaries.

You don't swear anything with a DMCA, the law says this in 3.A.vi: > 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

Ah yep, so they most likely did chuck in the "I swear, under penalty of perjury" to sound more intimidating and dramatic then.

Sigh.

A legal context like a “cease and desist” letter?

If I say "I swear under penalty of perjury that the earth is flat" in a cease and desist letter, even if I know that the earth is not flat, I cannot be found guilty of perjury because it is not a context in which I can perjure myself - I am not under oath in a court of law, and there is no other law that constrains my freedom to say such a thing. Title 17, Section 512(c)(3)(A)(vi) says that a valid DMCA takedown request must contain an assertion, under penalty of perjury, that the author is authorised to act on behalf of the copyright holder, and as a result making that claim falsely would be perjury. But the reason it's perjury is that the law says that the claim is under penalty of perjury, not that someone wrote "Under penalty of perjury" at the beginning of the sentence.

If I understand this correctly, it's perjury if they claim ownership over a video of you playing some Bach on piano on Youtube (which has also happened), but it's not perjury if they claim ownership over something that doesn't exist at the claimed URL?

It's more complicated than that - recordings have copyright independent of the original works, so if you make a recording of Bach now, you have copyright over that specific recording even though the music itself is out of copyright. So if someone were to file a takedown request of someone playing Bach on piano on Youtube on the grounds that you had used a recording owned by someone they were authorised to act on behalf of (even if you hadn't used that recording!), that wouldn't be perjury. But if they were to make the claim that they were authorised to act on behalf of Bach himself (which, clearly, they're not), that would be perjury.

But if the video is simply you playing Bach, does that mean they fraudulently claim to represent you? Or are they fraudulently claiming Sony (or whoever) owns your video? Or are they merely correctly claiming that Sony owns something obviously unrelated to your video, and they're incorrectly but not fraudulently claiming that that thing is related to your video?

I guess it's the third option. Which is frustrating, because I think that it's still harmful, especially when it's so obviously false.

If they knowingly misrepresent a claim that content is infringing, they're liable for damages (17 section 512(k)(2)) but didn't commit perjury. If they are simply negligent in making a claim (eg, because a piece of software told them an infringement had occurred and they didn't actually verify that), they're probably fine. This obviously makes abuse trivial and if anything actively discourages people from verifying whether an infringement actually exists - if they do and then send the takedown notice anyway they're potentially liable for damages, whereas if they never bother then negligence doesn't seem to result in bad outcomes for them. The DMCA is bad law.

Yeah, that's pretty terrible. They should be required to always verify and always be held liable to some degree when they're wrong.

So wait...

Can't somebody take the precedent set by those lawyers using ChatGPT to whip up nonsense for the court, and take these DMCA mills to tadk for conduct unbecoming for not verifying that, in fact, any software generated flag actually has merit before the Courts?

The Courts have been clear and unambiguous that their time is not to be wasted on BS, and that an attorney has the Duty of Care to ensure that what they vouch for is representative, and truthful.

Why is this still done at the scale it is if, in fact, the Courts are enforcing due rigor?

...The answer likely is, they aren't, and big tech is usurping the authority of the Courts to weigh in, thereby disrupting due process. In doing so, their legal team is committing the same censurious behavior, by advising their client to act unlawfully too.

Frankly, I'd start being thrilled at such notices if I could find an attorney willing to take a shot at holding notice generators to account for false positives, and service providers who cancel service without complying with due process accountable.

In fact, if the Courts were sufficiently dedicated to it, it would create a selection pressure on attorneys to ultimately be truthful, lest they be hunted by one of their fellow attorneys who actually is honest, and willing to check.

Who watches the watchers? Another watcher, with the incentive to reap a reward for proving the falsity of a claim.

Let the attorneys feast on one another for a bit, and eventually we should reestablish some sanity.

> You're only committing perjury if you falsely assert that you're authorised to act on behalf of the owner of the allegedly infringed right.

The courts don't care about that either. In at least one of the cases against ISPs (cox I think) the RIAA sent a large number of DMCA notices for works they didn't even own the copyrights to. After years of work the ISP's lawyers found a bunch of them and told the court who did reduce the damages they were on the hook for to account for the invalid DMCA notices but the court took no action whatsoever against the RIAA for sending them.