Aren't DMCA takedowns required, under penalty of perjury, to assert a non-frivolous copyright claim? Is there any recourse for what appears to be clear abuses of the DMCA?
There is recourse against truly false claims made in bad faith, but it's not the penalty of perjury part. All you swear under penalty of perjury is that you are authorized to act on behalf of the owner of some copyright allegedly infringed (i.e. you're not filing a claim about someone else's work).
Here's the actual recourse created by the bill:
> (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.
Note that the EFF is trying to prosecute a case over this clause [1]. IANAL, but it seems to be hard to hold someone responsible for a bad DMCA notice unless they specifically knew that it was bad (rather than merely being sloppy and sending notices without adequately considering fair use). Whether that is the case for this notice could theoretically be found out through discovery.
Their likely justification is the use of those image snippets which appear to come from their manual. Realistically, those small captures represent fair use (though I am not a lawyer so can't speak legally).
I assume it would fall under commentary[1], esp. as it's one a single image and it has literally been written over to show the material that the comment is referencing.
The DMCA notice/counternotice system is only about copyright infringement. They wouldn't get one for the circumvention prohibitions; or if they did, it would be an illegal use of those notices.
Comments
Note that the answer below the question contains this link to the Google cache of the original article that was taken down:
http://webcache.googleusercontent.com/search?q=cache:FYBbAFU...
There doesn't seem to be anything in there that looks like an infringement of anyone's copyright.
Aren't DMCA takedowns required, under penalty of perjury, to assert a non-frivolous copyright claim? Is there any recourse for what appears to be clear abuses of the DMCA?
There is recourse against truly false claims made in bad faith, but it's not the penalty of perjury part. All you swear under penalty of perjury is that you are authorized to act on behalf of the owner of some copyright allegedly infringed (i.e. you're not filing a claim about someone else's work).
Here's the actual recourse created by the bill:
> (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.
http://thomas.loc.gov/cgi-bin/query/F?c105:6:./temp/~c105aLN...:
Note that the EFF is trying to prosecute a case over this clause [1]. IANAL, but it seems to be hard to hold someone responsible for a bad DMCA notice unless they specifically knew that it was bad (rather than merely being sloppy and sending notices without adequately considering fair use). Whether that is the case for this notice could theoretically be found out through discovery.
[1] https://www.eff.org/cases/lenz-v-universal
Their likely justification is the use of those image snippets which appear to come from their manual. Realistically, those small captures represent fair use (though I am not a lawyer so can't speak legally).
I assume it would fall under commentary[1], esp. as it's one a single image and it has literally been written over to show the material that the comment is referencing.
[1] http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...
I don't think it's on copyright grounds, I think it's on circumvention grounds.
The DMCA notice/counternotice system is only about copyright infringement. They wouldn't get one for the circumvention prohibitions; or if they did, it would be an illegal use of those notices.
Good point.