Comment Re:the problem is elsewhere (Score 1) 389
Is it really true that there are no penalties and liabilities of any kind for the person that filed the fraudulent DMCA notice?
If that's the case, is there anything stopping us from creating and deploying tools that submit [fraudulent] DMCA notices for every single piece of content hosted on Youtube and similar sites, effectively crippling every part of the web hosts user-submitted content and provides an interface to submit DMCA claims? Wouldn't such blatant [legal] abuse of the DMCA be enough to attract attention to the calls for reform?
I am not a lawyer, but it seems to me like it could meet the requirements for defamation. From wikipedia:
Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.
[In the US] the four (4) categories of slander that are actionable per se are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person's fitness to conduct their business or trade; and (iv) imputing serious sexual misconduct. Here again, the plaintiff need only prove that someone had published the statement to any third party. No proof of special damages is required.
(iii) could be argued, if the uploader was monetizing their videos, though I suspect negligence might be more appropriate.
The underlying issue is that the internet is international in nature, so you can easily have the complainant, accused and service provider in three different countries, and it's prohibitively expensive to sue anyone not in the same country as you. The DMCA was put in place to streamline complainant-ISP interactions, but didn't consider the rights of the accused (despite them being the weakest party in most cases). This was exacerbated by placing the burden of proof on the accused, since the ISP just forwards the complaint to them.