https://en.m.wikipedia.org/wiki/Notice_and_take_down
> Provided the notification complies with the requirements of Section 512, the online service provider must expeditiously remove or disable access to the allegedly infringing material, otherwise the provider loses its safe harbour and is exposed to possible liability.
Which include :
> Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number and email address
>> Shopify says that it’s not feasible for the company to investigate the validity of all takedown notices in detail. As such, these false claims resulted in actual removals and the affected stores also received strikes on their accounts.
It isn't a good system but Youtube in particular was loaded with pirated content in the early days before Google invented automated copyright moderation so they most likely needed to do something drastic to delete pirate accounts to avoid legal trouble with the copyright lobby and everybody else just copied the idea as a "best practice".
In other words, they don't want to spend the money to fulfill their responsibilities.
That was built into it on purpose.
That's the context I was referring to. If Shopify requires an address and phone number from DMCA claimants, then won't the DMCA claimants simply sue Shopify for making the process too restrictive?
It looks like Shopify has decided not to play that specific game.
>Information reasonably sufficient to permit the service provider to contact the complaining party //
The complaining party is a party with a [genuine] complaint of copyright infringement. A specious claimant is not really a complaining party. Whilst an email address may allow you to contact a party, it's not really sufficient to contact a [genuine] complaining party; the email address will put you in touch with lots of correspondents who are not complaining parties but instead are vexacious complainants.
Requirement for a notarized affidavit delivered by registered mail would seem like it would be no bar for genuine complainants who were subject to a loss that the court, or public process, should care about.
That might be too onerous? Maybe parties should prove they have registered the copyright in their works at the USPTO, as they would in an infringement proceeding?
This situation seems like what happens when you let corporate interests write the laws and you just sign them in.
That does not answer whether Shopify is free to use more information to filter out fraudulent claims; though my understanding is that Shopify is not really allowed to filter out fraudulent claims at all, so that point is moot.
Where the DMCA went wrong in my opinion is it should have been upon notice you have one business day to notify whoever posted the content, and they get one business day to respond. If they take down the offending content, then all is well (the amount you could gain from two days of something being up isn't worth your court costs) If there is no response at all, only then is content taken down automatically. If there is a response that the content doesn't infringe then content stays up, but the response must contain full legal contact information: the accuser is required to go to court to get the content taken down. Note that court mean the count of law in the country the accused lives in.
The above is how normal cases should work. There are some tricky things that need to work different. If the accused is in a country that doesn't recognize copyright, if the legal contact information is invalid, if the accuser is submitting many false claims, or the middle party doesn't do their part there are problems. I'll post my ideas, but there is room for better ones and a lot of details need to be worked out.
If accused party is in a country that doesn't recognize international copyright (China being the big example), then take downs need to happen immediately - we cannot trust your courts to protect our people so you in turn are assumed wrong, take it up with your government. (I can't think of anything better here - I'm open to better ideas)
If the legal contact information given in the response is invalid, then the entire account should be terminated and all content deleted.
Many false claims needs to be legally defined. I'm going with the copyright owner and (not or!) their authorized agents send more than 100 take downs that after 1 year are still up and no court case has been filed.
If the middle party (youtube) doesn't react to court orders to take things down, or to the poster asking to take infringing content down then they are in trouble. Otherwise they are only a middleman.
As an example, send a DMCA/C&D to shopify.com - do they have to take down their homepage? Of course not. Did they set up a robot to take down their homepage when it receives a request? Of course not.
> DMCA has no concept of fraud prevention
Yes it does. The safe harbor requirements require that material removed expeditously upon proper notice. A bogus notice is not proper notice. Acting on a bogus notice is against shopify's own notice and takedown procedure. They are creating more harm for themselves by doing this.
What they are not prepared to defend is their users' content.
The writers definitely intended towards that spectrum's latter.
As a piece of enforceable legislation, it is heavily-flawed.
Then build something reasonable to replace it.
To the implementation established through corporate lobbying of media corporation over the last century; yes, I'd very much agree.
The core is, people who create useful works deserve to make a living and not simply have the financial benefit of those works go to others who are rich enough to exploit them.
I'd be interested if you don't agree with that core, if you could explain why?
Monopoly is not the route we should be taking to achieve that. Copyright only manages to support a select few artists. It does so by making it more difficult to create art in the first place!
The overwhelming majority of copyright benefit (in dollars) goes to "others who are rich enough to exploit" the system itself, not to the artists who are in need of "a living". Those absurdly wealthy groups make it more difficult and more expensive for artists to compete with them. The tool they use for anti-competitive behavior is copyright. Copyright is only useful for anti-competitive behavior, because copyright is literally defined as monopoly.
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If we did not have copyright, people would still be free to financially support artists. There would only be two major differences:
1. Artists would not be able to compel people to financially support them.
2. Giant corporations would not be able to compel artists to give them monopoly over their art. Artists would be entirely free to create new art, and to seek direct financial benefit from that art.
I argue that the second effect is by far the greater of the two, particularly in respect to artists who need a living wage.
Yes, in the copyright system we _have_ in USA/Europe (probably globally). But fundamentally copyright was birthed out of protecting creators of works (authors of books in the case of Queen Anne's Statute). Capitalism is fundamentally corrupting of every system, but that doesn't mean the "core" of the underlying system was bad -- that is all I argue for here, that a just copyright system that actually encourages sharing of works could exist, modelled on the fundamental core of copyright which is protecting authors/creators from predatory industries and maintaining things such as right of authorship (being acknowledged as author).
To be clear, you should not be able to profit from claiming original authorship of those works: that would be fraud.
The problem with the DMCA is that in practice it's ridiculously lopsided. It's *supposed to be* under penalty of perjury but no harm comes to those who make false claims.
Have any companies been successfully sued for attempting to police DMCA fraud on their platform? Be interesting to know how courts treat good-faith efforts and if there have been instances where a company just phoned it in and got in trouble for half-measures.
However, companies often have policies that are more restrictive than DMCA (YouTube, for example, will remove things that the DMCA would not require).
Because if Shopify gets the take-down request and ignores it, they are now potentially liable for the infringing content remaining available after the complaint has been made. Reviewing each complaint requires billable hours for someone, and just blanket accepting every one and removing the content is easily automated and incredibly cheap. And because they're so big and handle so many websites, even if every complaint is invalid and bullshit, the stores that get nuked in the process won't hurt their bottom line as much as a potential IP lawsuit would.
If sending fraudulent claims like this resulted in the sender going to jail this wouldn’t be much of a problem at all. But it doesn’t.
Prison is a massive cost to society, we should avoid it except where it's entirely necessary.
The rationale is that the DMCA gives complainants the ability to restrict others' speech, and so the law wants to strongly disincentivize abuse of that power.
In any case, I didn't express it well. What I intended was that, in my personal opinion, these matters should be treated as a civil matter in view of copyright essentially being a tort.
USA Americans seem to contort the notion of speech beyond recognition. Being prevented from publishing a video someone else created, say, doesn't inhibit your right to express any opinion (aka freedom of speech). But of course, disincentivising abuses of power is always good.
Yes. DMCA claims are made under penalty of perjury.
> Being prevented from publishing a video someone else created, say, doesn't inhibit your right to express any opinion (aka freedom of speech).
Indeed, the inhibition of free speech is when you are prevented from publishing a video you created, because someone else falsely claims that they created it. Hence the felony.
1. Forcing a seasoning period on new accounts before they create DMCA requests
2. Ranking the # of DMCA requests by account and increasing scrutiny of top complainers
Could someone in the know explain how Shopify can continue to avoid the problem despite obvious solutions?