But it’s also why many “old media” producers and companies in the entertainment and music industry have careful policies around refusing to receive or acknowledge ideas and content from outside the organization.
It’s much harder for some fan-writer to pursue spurious legal credit for some plot idea or script content when you maintain an official policy to bin unsolicited submissions and to never acknowledge work shared in public.
That’s tricky for “new media” companies since consumers now expect direct engagement with publishers, especially for “indie” artists, but the old system was designed to guard against stuff like this.
Note however we are getting one side of this story -- the developers. I have no idea what is going on and it is surprising how many times things swing around when both parties are heard (the Doom Eternal soundtrack issues come to mind)[0].
[0] https://medium.com/@mickgordon/my-full-statement-regarding-d...
This story is copyright itself brought to its objective conclusion.
Everything here, the petty IP ownership claim, the expectation to have that ownership literally applied, the reactionary griefing, etc. is all baked in to what copyright is at its very foundations. This person is simply playing out the function of copyright as an ideology in their interactions with the game company and its business presence.
They feel they have the right to monopolize the product of their intellectual work, because copyright says so. They feel they can interrupt the sales of the game because copyright says so.
And most important, they feel that they should do these things, because the very existence of copyright, and it's foundational social purpose, tell them it's in their best interest, and their "best interest" is tantamount.
This isn't just a story about copyright, it's copyright itself told as a story, just with real people as subjects.
So let's stop pretending. This is ugly, frivolous, unhelpful, and damaging. This is copyright law. This is an exposition of the social malware that copyright is, was, and ever will be.
So the commenter is right: this person (apparently) created a work (IP) and thinks they have a right to monopolize that work.
The fact that IP law exists in the first place gives this person ground to stand on and do a lot of damage, because the claim has some amount of truth. There is probably not enough truth to his IP claim that this will work for him, but there is enough truth that he’d be mentioned in the credits.
Aside from this, false DMCA claims are even used as a vehicle for harassment. Of course that is broken as well...
> Matters have now escalated to the point where the game itself has been taken off Steam due to a DMCA request, and the player is “now claiming that they own the rights to the [realistic] game mode”
People who do this without grounds should be punished/fines for abusing the system proportionate to what they claim.
0. https://www.imdb.com/title/tt0084314/
1. https://www.imdb.com/title/tt0084314/mediaviewer/rm188310835...
This has to be terrible for small dev shops to face, I'd imagine enough litigating and good projects just fold up shop unable to afford their own defense cost.
Anyone can sue you for whatever reason. The court can throw the case out but it’s a nuisance to you.
Platformists say that this is necessary because transparency will allow bad actors to game the system, but their solution to this to make society into an oppressive panopticon; the cure is worse than the disease. Further, the ignore the degree to which the lack of transparency is already weaponized by bad faith actors.
The anti-circumvention provsions are also a trash fire. DRM regimes are some hot consumer-hostile bullshit that have no (legal) alternative because the law is behind them and heavily weighted towards the needs and wants of major IP holders. Modern US copyright law is designed primarily to maximize profits and enforcement mechanisms for entrenched interests with little regard for anything that isn't, idk, Beyonce tier of actually needing that much licensing cruft.
There's some joke somewhere about ours being the first few generations to systematically deny ourselves access to our own culture because biglaw is more than happy to cut off its cultural nose to spite its face so long as the money train keeps flowing for the few elites that really benefit from the current system. We have a walled garden that will likely never fall because life is peachy if you're inside the garden already, and anyone outside can't compete with the financial and lobbying muscle of those inside it without operating in legal gray areas at best.
Them's the rules. Don't hate the player, hate the game.
Law is not objective ideology sitting in context-free space. Law is ideology applied, and that very application made explicit. A law defines the very context it exists in.
So we can't just objectively ignore the failure of a law being applied, because a better application of that law must be defined in that law.
Even if a law defines a reasonable ideological mapping (expected behavior), it still needs to define a reasonable application of that mapping.
If, in practice, we see a law being abused, then the solution must be to change that law such that it isn't abusable anymore.
DMCA is an extreme failure, not in defining expected behavior per se, but in defining the domain for implementing behavior. The way DMCA is put into practice circumvents the very ideological behaviors it defined as its expectations, in nearly every case it is applied to.
A version of DMCA that "isn't shitty" would be incapable of such overt and widespread abuse. Clearly the version we have does not meet that criteria.
If the law enables said shitty automatic responses, then yes, the law is indeed shitty.
I think the anticircumvention part of the DMCA is what's really shitty, but that's a tangent.
It works extremely well, if you consider who the beneficiaries are (who also happened to write it).
You are own a small forum or site. You get DMCA takedown, you take content down and are safe. Send notification to uploader. They disagree. You can put stuff back up. You are not liable for damages after this. And really shouldn't be expected to fight.
Now it is up to the two other parties to fight it out. This is where the system fails, because whole process is long and expensive. But so is any other legal action. Maybe consider fixing that reality first.
Companies that host content do basically nothing to actually verify that the takedown request is even from a real person (nevermind the original copyright holder).
A better system would be one that allows the uploader to take the takedown issuer to court, and if the takedown request was clearly malicious and bogus then the takedown issuer would get a penalty. This approach would still allow a legitimate takedown request, but not be forced the issuer into taking a contested case to court.
The system is specifically designed to be gamed by claimants.
It arguably doesn’t actually allow sites very specifically like Youtube to do that, which is why YouTube has a separate and more draconian arrangement with major rights holders, created in response to previous litigation and litigation threats, and is also currently being sued by a variety of rights holders in a suit which hasn’t been easily been barred by the DMCA safe harbor.
Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C.A. § 512YouTube did it a few years ago [1] to a popular creator in the Minecraft community who was threatening creator's with Community Guideline Strikes in order to extort them for money.
[1] https://arstechnica.com/tech-policy/2019/10/man-agrees-to-pa...
Why not? By my reading of the section you quoted, it stands independently from its parent sections; anyone who makes a legal claim of copyright infringement, or pursues action under the principle that such a claim exists, would seemingly be liable for damages if they're "knowingly materially misrepresenting" the facts of that infringement, whether or not in the context of a DMCA takedown claim.
Which, I mean, obviously; that's already the law, without the DMCA having to say anything additionally about it. If someone threatens legal action against you unless you do X, and you do X, and it costs you money, and then you find out it was a lie and they had no basis for their legal action — then you can totally sue them for damages, and you'll probably win. The DMCA just provides a very explicit basis for evaluating that particular situation without referring to any other bodies of potentially-conflicting case-law, so as to turn that "probably" into a "definitely."
In this case, sending a counter-notice (free), filing for a declaratory judgment and asking for an injunction to prevent additional malicious filings would probably be the most direct pathway to relief.
Filing bar complaints isn't likely to work all that well, because it doesn't really map to the typical things that state bar associations really look to pursue. The vast majority of bar complaints result in nothing, and most of the ones that are deemed valid result in mandatory CLE rather than more substantive penalties.
And the target of a false claim can sue the party who made the claim for damages and attorney's fees.
Perjury is a pretty terrible mechanism, frankly. The whole law was and is poorly conceived.
Now if he knows he didn't originate the idea and has brought vexatious proceedings, then sure, this may be perjury, but we are some way off knowing this, and i don't think we'll be in a position to determine this either way.
For a large production like a film, that may mean splitting the rights up fractionally to thousands of different people. This would prevent the kind of unilateral rent seeking that squashes artistic creativity - getting a thousand regular actual artists and normal people to agree to sue a harmless fan project is much less likely than an executive suite.
More importantly, I believe that the burden of proof is on the accuser, and so far the only thing the've done is filing DMCA takedown requests. Which have a notoriously low bar for what constitutes "evidence", thus making it a very useful instrument for harassment.
Unless we discover that the developers simply lied in their official statement on the issue, the current situation seems like a fairly typical DMCA abuse case. Since they are planning to fight the DMCA takedowns, I expect we will find out the truth soon enough.
Disclaimer: I am not trying to write some anti-DMCA manifesto, but just to simply illustrate the reality of the situation. DMCA is an imperfect solution to a problem, and I believe it certainly could be done better and/or improved. However, it is easier said than done, as I don't have a proposal in mind for a better system. Getting rid of DMCA entirely without introducing a replacement mechanism is just going to open up another problematic can of worms, so I am not going to advocate for that until I have something better in mind.
The implementation part is where the problem lies. If this company is right, then they are being actively harmed by the utility provided in the very law that has defined them to be in the right!
Even if the DMCA takedown feature makes logical sense in the abstract, its thoroughly demonstrated utility for abuse shows us that the law itself fails to implement its own application.
The correct way to resolve this problem is to change the law, such that it is no longer abusable.
Without DMCA the wrong people might benefit from the creativity of others, sure. That isn't just the case here and a solution would be nice. But as it stands DMCA affected content very negatively.
The overall parasitic behavior of lawyers is very likely larger than that of those that steal content. It is very rarely being done out of malice and mostly fans anyway.
Could the internet exist in a way that makes the RIAA/MPAA/etc happy without DMCA? Maybe not. But there’s no reason to assume their happiness is a requirement, or even desirable.
The takedown process is part of, and only relevant to, the safe-harbor provision.
> Companies that host content do basically nothing to actually verify that the takedown request is even from a real person (nevermind the original copyright holder).
Because not complying with a correct-in-form takedown puts them outside of the dafe harbor. The uploader can, of course, challenge the false takedown (and the host can decide they don't care about safe harbor, but they won't in practice, nor will they normally care as much about safe harbor against claims by the uploader, so counternotice compliance may be less enthusiastic than takedown compliance.)
> A better system would be one that allows the uploader to take the takedown issuer to court
You can do this. A false takedown is false, damaging statement of fact and actionable as such, it may also be actionable as tortious interference, and a number of other things.
Yes, I'm aware - I'm saying that the fact that the law allows truly unvetted takedown requests is silly - there should be some method to disincentivize dodgy takedowns.
> You can do this ...
Realistically it's extremely difficult for this to occur, and the costs often are extremely high (relative to the returns).
Exactly what you say should be available is in the status quo. What is it that you want that is different?
So the system is not designed to be gamed by claimants. It's designed to give legal protections to hosts of sites. But this is most definitely a carveout to protect sites. Without the law no one would face to liability of hosting user generated content.
You could have a law that provides a safe harbor provision but also requires claims to be honest and backed-up to "some" level of confidence.
The law as it stands does appear to have the possibility of the penalty of perjury for intentional misuse, but, apparently, a comma means that apparently this is actually only applicable to a small part of the claim[1], and as far as I know has never done so. I do not know if this is because the law doesn't make definitions clear enough to demonstrate bad-faith in court (including that comma), or the legal system in general simply doesn't care to enforce the law.
[1]: https://law.stackexchange.com/questions/51541/has-anyone-bee...
You do realize we had a fully functioning internet filled with user-generated content before 1998, right?
Its almost as if providing safe harbor allowed such sites to grow......
At some point you have to realize the players are dictating the game, and then yeah, hate them.
The legislation is bad, because it neither accounts for normal actors that generally would always follow the passive path of least resistance, nor for bad actors that would actively try to abuse the system.
This is basically being upset over the effects of a natural law. You don't blame rocket for exploding, you blame the idiots who designed it that way. And you definitely don't blame the launchpad operators for poor rocket design - that's not even their job.
Here are some links that reference his YouTube channel name (cbrady350) which match to his real name Chris Brady.
[1] https://socialblade.com/youtube/c/cbrady350-pvp [2] http://www.twitlonger.com/show/n_1sqnk16 [3] https://twitter.com/sk1er_/status/1163536914386960384
No. It doesn't.
The Oxford English Dictionary traces singular they back to 1375, where it appears in the medieval romance William and the Werewolf
The New Oxford Dictionary of English (1998) not only accepts singular they, they also use the form in their definitions.
And the New Oxford American Dictionary (Third Edition, 2010), calls singular they ‘generally accepted’ with indefinites, and ‘now common but less widely accepted’ with definite nouns, especially in formal contexts.
Please, learn English.
Language evolves so paper dictionaries from the beginning of the 21st century will not be entirely accurate but given the way some publishers of online dictionaries have taken to using their products to push language revolution instead of following language evolution those old paper books are more accurate guides to how people use it than their ideologically-driven on-line counterparts.
Given this blatantly incorrect reframing of the DMCA as anything other than being intended to serve the copyright lobby’s interests, it’s hard to believe you’re arguing in good faith.
Yeah, you can totally sue Disney or Warner Bros if they file a false infringement claim against you. You'll definitely not win unless you have hundreds of thousands of dollars to go up against their phalanxes of corporate lawyers.
The DMCA doesn't take into account unequal parties.
Mind you, I say knowingly false. Big companies unknowingly make false claims all the time, because they don't know what-all they actually own — but you can't sue them for that anyway, since there's no mens rea there.
"I don't know whether or not I own this intellectual property but I'm going to sic the DMCA on you anyway" is blatant negligence, at best. That our legal system doesn't consider that to be mens rea is one of a 3.7-mile-high stack of indictments against said legal system.
The answer is right there, my emphasis added. YouTube’s internal mechanisms, a la ContentID, are not processes which are a part of the legal system. They’re corporate policies.
It is worth noting that this distinction is irrelevant to this article, however. As this article says this was a DMCA claim. So any potential false claims in this case do carry this potential penalty.
No, that's not what I meant. I meant, "any claim that can be interpreted in a court of law as being equivalent to saying you intend to sue for copyright infringement and have a legal basis to do so."
In the same sense that a handshake contract is still a binding contract, a regular letter telling someone that you're aware they're violating your copyright — and which doesn't explicitly disclaim any interest in pursuing legal action — can still be interpreted as a threat of legal action; and therefore, if proven to be based on knowingly false claims, as injurious perjury.
To be clear, it's not YouTube making this claim; it's the IP owner making the claim, when they register the IP in the ContentID system. Such a registration is equivalent in the spirit of the law to notoriously claiming 1. you are the IP's true owner, and 2. that you do not license use of your IP for use by others without your prior consent; and that therefore 3. you have an interest in pursuing action against all future unlicensed use of your IP, whether that action is using the DMCA, within the framework of the legal system outside of the DMCA specifically, or through extralegal means.
By analogy, consider what sort of verbal claim of intent to commit a crime (e.g. selling illegal drugs) is necessary in a police sting to trigger an arrest. You don't need to actually have committed the crime (i.e. hand the undercover officer any drugs, or even prove you have any drugs); you merely need to make it clear that you are actively working to set up the conditions necessary to carry out the crime (i.e. to agree/negotiate a price for the drugs you may have.)
In this case, a judge would basically be looking for the point of "stated intent to commit perjury." Which happens as soon as the ContentID for the video is registered!
Had anyone ever successfully sued in response to a false non-DMCA copyright claim?
Schemes (including those pre-existing under the common law, as was the case for defamation) giving strict liability for false statements have generally been found to conflict with the First Amendment, and in any case, I’ve literally never heard anyone suggest that the main, or even a major, problem with the DMCA safe harbor was too many takedown notices made with reasonable, good-faith belief in their accuracy that were nonetheless wrong.
So, to me, this seems like an probably-unconstitutional solution to a non-problem.
I have seen the subject come up regarding organizations that carelessly bulk-send DMCA notices based on quick searches for possibly infringing material with little, or sometimes any, effort to confirm. Though I suppose that wouldn't be "good faith". But wouldn't that be a negligence standard? The law says "knowing".
> So, to me, this seems like an probably-unconstitutional solution to a non-problem.
As for the constitutional impediment, that may well be the case, but this is not a non-problem. If the DMCA regime shifts all the costs for a false statement (even if not a "knowingly" false statement) to the recipient (and/or their hosting provider), that's a problem. Maybe not a problem worth upending first amendment precedent over, but a problem nevertheless.
It's been common place all my life and that's going on six decades now.
'Merkin English, however, likely has prescriptive rails and a lingering shrinking horror stemming from the inappropriate touch of Webster.
> those old paper books are more accurate guides to how people use it than their ideologically-driven on-line counterparts.
Exactly - see the full OED (Oxford English Dictionary) entry on the long historic use of 'they' over seven centuries and the many ways in which it has been (and continuous to be) used contemporaneously both as singular and plural.
However, for certain using plurals for individuals of unknown gender is hardly rare, there are hundreds of examples in literature a quick Google away.
It has become (somewhat) popular in the context particularly of discussions on trans rights and 'misgendering' to take the position that the singular they is somehow ungrammatical because people don't want to use it to refer to people whose gender they believe is not unknown.
But it seems to me as though that argument is actually not related to the current discussion.
Here we are simply discussing whether 'they' can be used to refer to a person whose gender is unknown to the speaker at the time, for which there is ample historical, literary evidence that this is commonplace in English, as well as the anecdotal evidence from sibling comments.
Geocities, say, was huge before the DMCA and died after it.
After DMCA when those suits were gone, they raised $$$, became much more valuable, grew, and soon got bought by Yahoo. They went from the 5th most visited to 3rd, even with much more competition. They grew the user base.
The same thing happened to Tripod and Angelfire from that time.
Instead of trying to cherry pick one example, look at all companies before and after. That is the accurate way to see what happened. If you think the safe harbor content protection did not and does not matter, look how hard current companies are pushing to keep Congress from removing such laws.
[1] https://washingtontechnology.com/1996/11/publishers-push-pir...
Many of us may also have made a similar assumption–I know I did, and I have certainly made edits to comments in the past where I have unconsciously assumed the gender of someone with no evidence and later noticed. However, we have no idea what gender the user is. English does not have a clear, unambiguous way of saying a third person of an unknown gender, but 'they' is definitely part of common vernacular.
I agree that in general, it's probably better to be consistent internally within a sentence, but the rest of your argument is pretty badly flawed.
With regards to resorting to French to try to argue, 'any online translator' will likely translate 'they walk' to 'ils marchent'. But it's equally possible that it could be 'elles marchent', 'on marche', or with enough context 'il/elle marche' regardless of the gender of the actual person (e.g. 'La personne s'approche dans la nuit. Elle marche avec des pas longs.').
There are also plenty of cases where we refer to singular nouns with plural verbs (e.g. 'the police are on their way').
Prescriptivism in English is an overall unrewarding topic, unlikely to make you any friends, and rarely helps to forward whatever point it is you're trying to make.
I'm not sure that I understand exactly what your point is anyway, how do you propose we refer to someone of unknown gender?
You have the air of that fundamentalist branch that forked off in central north america to worship a prescriptive Elements of (Our) Style by Stunk & Whine.
P2: The person in the green coat?
P1: Yes, that one.
P2: I don't know them. Do you think Joe knows who they are?
Both in terms of real problem and constitutionality I think a negligence standard is more defensible than strict liability.
> If the DMCA regime shifts all the costs for a false statement (even if not a “knowingly” false statement) to the recipient (and/or their hosting provider), that’s a problem.
To be fair, the DMCA doesn’t shift any costs in that direction; in the absence of the DMCA safe harbor provision that the notice/counternotice process is part of, the notice recipient would be exposed to all the same costs as they can be under that regime, and the host would be exposed to additional costs. The safe harbor regime only gives the host an option which, if followed, removes any liability they would otherwise have, first (on the notice side) to the purported copyright owner, and second (on the counternotice side) to the target of the notice.
Which is why counternotice compliance is spottier than notice compliance: hosts are confident that, even before the safe harbor, they have no liability for an unnecessary takedown, so they don’t care about the part of the safe harbor tied to counternotice compliance.