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.
--
Actual damages isn't much of deterrence, though, considering the typical scenario. Proving actual damages is costly and the ratio of typical damage amounts (nil to moderate) to litigation costs makes it an unattractive option.
The level of abuse at which a court may penalize a party independent of a statutory provision is quite high, so that's not a meaningful deterrent, either, though the situation is so bad there have been some high-profile cases.
For real deterrence you'd need statutory damages, similar to statutory damages for copyright infringement. But Fair Use is such a muddied area of law that litigation costs might still make it unattractive to pursue statutory damages for most people.
It's all kind of moot in the context of Youtube because most copyright disputes happen through Youtube's own internal policies and mechanisms, which are mostly controlled by the terms of Youtube's private contracts.
The best solution is twofold: 1) reform copyright by circumscribing copyrightable subject matter and clarifying fair use, and 2) make self-hosting of content easier, more in line with the late 1990s utopic vision of everybody as their own publisher--as opposed to the current situation where Youtube, Facebook, etc are the new publishers and individuals remain confined to content creation.
The key phrase there is "knowingly materially". So in other words, an automated content matching system which flags up any instance of 2 seconds of matching content, with no manual review step, would not fall afoul of this clause, because there is no law that says a use under 2 seconds is definitely not infringing.
Good point, and perhaps the most important reason this remedy isn't much of a deterrent. That said, once you dispute a takedown request I would imagine (hope!) that the moderating effect of automation is removed, making it easier to prove that element if the requester remains intransigent.
But even without automation, "knowing" is a steep burden when it comes to copyright considering all the legal grey areas.
And it just occurred to me that it cuts both ways--the subsection makes both copyright holder and infringer liable for misrepresentation in takedown disputes. If you make it easier to show knowledge of the copyright holder, you make it easier to show knowledge of the purported infringer. The easier it is to meet this element, the more financially risky is it to dispute takedowns.
Prenda Law has basically nothing to do with the DMCA, as I understand it. They did a lot of illegal things, but it isn't clear to me that they ever sent a DMCA takedown notice to a Online Service Provider[1]:
> In the 2013 civil ruling, Prenda Law and three named principals, John Steele, Paul Hansmeier, and Paul Duffy, were found to have undertaken vexatious litigation,[4]:FOF.5 p.4 identity theft,[4]:FOF.9 p.5 misrepresentation and calculated deception (including "fraudulent signature"),[4]:FOF.6 p.4, FOF.9–11 p.5, p.6–8 professional misconduct and to have shown moral turpitude.
They didn't get in trouble for filing spurious takedown notices; they got in trouble for extortion.
Their M.O. was to sue anyone they could identify by IP address from their own porn torrents and settle out of court for as much money as possible (and drop suits if the defendant wouldn't settle or couldn't pay — they wanted to avoid the scrutiny of a courtroom).
Sending DMCA takedown notices to the Pirate Bay would (1) not get them paid, which is about all they cared about, and (2) likely not actually result in content being taken down, if I understand the Pirate Bay.
> They didn't get in trouble for filing spurious takedown notices; they got in trouble for extortion.
As far as I saw from following Popehat's coverage of the case, they also didn't get in trouble for extortion. That was fine.
They got in trouble for owning the films they were suing over. (Without letting the court know they were the copyright owner as well as the legal representation.)
I've never understood why Prenda Law's legal troubles seem to be viewed as some kind of victory against copyright trolling. They did things that were bad, and they did things that were illegal, and there was no overlap between those two categories. All of their practices that we think of as "copyright trolling" are still 100% OK. They didn't get in trouble for that.
