(f) Misrepresentations.—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.
Generally automated take down services are not my favorite business - the DMCA has strong penalties for infringement baked in, and one reason those penalties exist is that there is a strong enforcement clause that the takedown notices are made in good faith. There is no way these were made in good faith based on the facts described.
I think bringing this in a jurisdiction with sensible judges - Northern Cal, SDNY, Delaware, does not look impossible to me. And, it only takes one win to radically change the economics of these trolls — it seems worth doing, is all I’m saying!
As for motivation, in Japan there's much less of a cultural norm around sharing information publicly compared to the West. It's much more "if I have this thing and you don't, and I don't know you, why should I give it to you?" Some people will even get annoyed with you if you follow them on Twitter and you don't know them, or if you link to their website without asking them first. With that context, I don't think there needs to be much of a motivation beyond "people are posting videos and copies of my game online and I don't want them to".
Of course whoever is doing this doesn't seem to want to make themselves known publicly besides all the takedown notices, so I doubt we'll ever conclusively find out who they are. Much of what was being taken down is valid fair use, so even if it is someone associated with the original developer I don't really feel sorry for them getting their automated takedown request powers taken away.
Eh I am a bit of a collector and this line of thinking would let me establish copyright for a ton of games I have some precious treasures from.
Also I know a guy who worked for Sega and Nintendo for a while who is still sitting on a stack of design docs from his time in both, and he definitely doesn't own the IP for any of their games.
I suspect this person has located or inherited these items and is trying to establish copyright in the same way that Craig Wright is trying to pass himself off as Satoshi.
Most people are unwilling to spend a few thousand dollars on a project that accomplishes nothing other than costing them a few thousand dollars. So we're curious what Brandon White was thinking.
It's not perfect, and the system can still be abused. But a DMCA takedown isn't necessarily an impossible burden that requires the recipient to do sleuthing to determine the real copyright owner. If they own it, they are good. If it's reasonably fair use, say so. Sending a DMCA takedown is easy, but you can flip it back just as easily. The hard/expensive part is filing/defending a lawsuit, which the complainant must initiate, which then reveals their identity, establishes liability for false claims, and carries a burden of proof.
The process is often abused just to gain this information, with the complainant dropping the whole thing after receiving these details.
I didn't have to do this when I received a bogus takedown notice for a YouTube video.
But I'm not in the US and I don't know if YouTube's process varies by jurisdiction.
It has long seemed crazy to me that, as a society, we’ve allowed large companies to argue that they can’t do basic things that their smaller competitors have to. Provide customer support. Assess legal challenges. Et cetera. Should we not rather say: you have the resources, use them! This is a cost of getting big. You have economies of scale in other areas, don’t try to evade responsibility here.
There will be nothing but pain and frustration if you ask corporations to try and supplant the courts. Copyright law is old and does not make provisions for the modern era.
You get a copyright when you create a work and it does not require any kind of registration. Establishing who has a copyright, if the work is copyrightable in the first place, or if an alleged infringement is fair use or not are thorny questions where two reasonable people might disagree.
That's why the law requires platforms to preemptively take down media if someone complains. It's because copyright, in the US and most of the world, is actually impossible to determine for private parties and minor works. You need a court and two sets of lawyers to figure out who actually did what. As the article says:
> The status of RODIK and the ownership of its rights are currently unclear. This makes it likely that Cookie’s Bustle is an “orphan work”, a copyrighted work where the owner is either unknown or cannot be located.
Copyright reforms requiring registration could fix this, but I don't think things are going to be calm enough to allow it for decades. I get that it's trendy to complain about big companies getting this wrong, but it's stupid to blame them for trying to survive under the current rules.
Don’t think these platforms obey every notice that meets the nominal requirement of the statute; they definitely do ignore some because they’re obviously nonsense. I suggest they should do this more. Yes, they theoretically open themselves up to liability in doing so, so I do expect them to err on the side of the claimer if there is any reasonable doubt.
But instead, they side with rights-claimers (who may or may not be rights-holders) structurally. They make takedown systems that go well beyond what is legally required, and then don’t police them, so that they invariably become vessels of abuse.
Here is a detailed example from uploading church services with old hymns in 2020, and YouTube’s Content ID system actively facilitating copyright fraud: https://news.ycombinator.com/item?id=27004892. I say YouTube should be required to cut off such transparent copyright fraud, when it is pointed out; and that if they’re not willing to do so, their platform should be shut down.
The big companies don't want to do this basic due diligence because today at least it requires human labor, even if that human labor is "do a quick glance and check a couple boxes".
The article even points out that US laws say that things taken down for copyright infringement but are in fact Fair Use should be able to claim damages. In theory a class action lawsuit of video essayists could make a real strong case in direct, estimated demonitization losses due to spurious copyright takedown notices YouTube acted upon automatically without any Fair Use checks. I can't imagine the stress of being involved in a case like that in practice, which is probably why there isn't enough people begging to be in a class action lawsuit like that.
It has been recognized by early Georgists as monopolistic and thus problematic.
That's why you see rent seeking behaviors and abuses. It's not new.
(ok maybe there are several thousand things, but you get what I mean)