17 U.S. Code § 512(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.
There probably exist civil law remedies outside the DMCA's protections as well. Tortious interference, slander of title, something that might stick given the specific circumstances and how good your lawyers are. IANAL.
Yes, that law also says that there should be a penalty. The parent poster is complaining about the fact that there isn’t any penalty. (In practice, that is.)
The standard is one of actual knowledge -- so it's really difficult to enforce when a computer program is most likely generating the lists, and probably not being reviewed in detail.
Shouldn't automated takedowns be considered null and void? If so, is there a way to allow firms that are known to send bogus automated takedowns be blacklisted? (i.e. you can always ignore them, if they try to push anything, you just point to their history of automated processes)
Something.
Anything. To discourage this behavior. To hit them where it hurts. (The wallet.)
Well, "any US company" can't coordinate well enough with "any other US company" to bribe the Congress and fix it, therefore they fall prey to the ones that can coordinate to maintain the status quo.
Send one communication saying "your bot is clearly throwing up false positives; take action to investigate & remediate, ceasing all bot usage until implemented". Now they're aware / can't claim lack of knowledge. Give them a week or two to read the mail & turn the bot off, then any subsequent requests charge them for. If the fine's based on damages, charge them for all employees time taken to trawl through removing all spammy requests / for the cost of the team on your side who have to develop the automated filters.
> Send one communication saying "your bot is clearly throwing up false positives; take action to investigate & remediate, ceasing all bot usage until implemented". Now they're aware / can't claim lack of knowledge.
Yes, they can. The fact that someone made that claim about the reliability of the process doesn't mean that the person sending the notice knew that any particular notice was in fact false at the time they sent it, even notices made after the claim of unreliability.
It is possible that if it can be proven that the recipient read the complaint, and failed to investigate it because they believed it was likely to be correct (or if, even without such a notice, they knew of the unreliability of the process and failed to investigate the facts of particular notices and just blindly relied on the process), and that decision was motivated by a desire to avoid discovering that the information was false, then they might be considered to have constructive knowledge, but that's a far cry from "a notice was sent claiming that the process was unreliable, so any error resulting from that process automatically will be found to be 'knowing'."
