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newster

join:2011-09-26
reply to sandman_1

Re: Astraweb automates DMCA removals

It's a widespread misconception that the "under penalty of perjury" standard applies to the accuracy of the claim. It does not. It only applies to whether the person is authorized to make the copyright claim.

Here's the text, from 17 U.S.C. 512 from »www.law.cornell.edu/uscode/text/17/512


(3) Elements of notification.

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

( .......... )

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(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.


sandman_1

join:2011-04-23
11111

No there are penalties for mistaken claims. Also in your quote, "A statement that the information in the notification is accurate, and under penalty of perjury", tells it all right there. If the information is NOT accurate to begin with, then the copyright holder or authorized proxy to issue one in their behalf can be held liable.

(v) refers to not filing the claim in good faith but to the fact that the claim, filed by the holder, is believed to be an unauthorized use of the his or her's copyright.

(vi) refers to that the claim is to be accurate and that the party is indeed authorized to act on the copyright owners behalf.

But don't believe me, per the DMCA itself:

quote:
In order to protect against the possibility of erroneous or fraudulent
notifications, certain safeguards are built into section 512

quote:
Penalties are provided for knowing material misrepresentations in either a
notice or a counter notice. Any person who knowingly materially misrepresents that
material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys fees) incurred
by the alleged infringer, the copyright owner or its licensee, or the service provider.


Safe guards were put in place to prevent abuse especially the part where it says,

quote:
Under the notice and takedown procedure, a copyright
owner submits a notification under penalty of perjury, including a list of specified
elements, to the service providers designated agent.


In other words, an Agent checks the validity of the claim and could, if the submission was error, file a counter notice.

Like I said, with these automatic DMCA take downs, they are not following the guidelines set forth in section 512 C.