This is an argument to re-write the DMCA to prevent frivolous claims, and thus reduce the total number of claims. It's not an argument to throw up our hands and pretend that it's unreasonable to expect human involvement.
I don't think anyone is advocating for the status quo, but that doesn't mean human involvement is required either at an initial stage.
One proposal is that you should need full legal identification to file a takedown claim, and be on the hook for damages and penalties if is malicious. This would solve 99.999 of the problem.
> One proposal is that you should need full legal identification to file a takedown claim
How exactly? Require a government issued ID? What if it's fake? How would you validate that the ID is authentic? Even if it is authentic, how do you ensure that person has proper rights to issue the takedown?
> and be on the hook for damages and penalties if is malicious.
How? They could either not be who they say they are and/or not located in the United States. Like in this exact case, the two defendants are located in Vietnam. There's zero chance they're going to show up, so it'll result in a default judgement that will never be collected on.
The best suggestion I've seen so far is to require an escrow deposit on takedowns that is forfeit on fraudulent/malicious claims. However, this then raises the issue of who would determine that. Also, this deposit could potentially tie up a lot of money of legitimate claimants, becoming a financial burden for them and preventing them from issue further claims (which further adds to that burden).
> and be on the hook for damages and penalties if is malicious.
Honestly, I think both conditions might be met with an already vetted credit card number, which obviously involves an associated identification of a person or company.
When signing up for cloud service providers, I'm always terrified that I'll leave something on and incur a massive bill. Basically, every cloud service move I treat as if I'm walking on eggshells. I'd assume those issuing a DMCA would end up the same way.
>How exactly? Require a government issued ID? What if it's fake? How would you validate that the ID is authentic? Even if it is authentic, how do you ensure that person has proper righgts
There is an infinite list depending on how strict you want to be. They could require government ID. They could require a notary. They could require a court order.
There will always be a balance between ease of takedown for legitimate claimants vs fighting false claims.
> How? They could either not be who they say they are and/or not located in the United States.
Require either US Identity papers or a corporate identity that is registered in the US in order to file a DMCA (or <country here> id/corpid for filing a <country specific> copyright claim)
Furthermore, tweaking the reporting times for DMCA would help:
1. Claim made, soft-takedown immediately (delist but don't remove)
2. Proceed to hard-takedown after 24 hrs if no counterclaim is made.
3. Counterclaim made, reinstate and inform original claimant.
4. Original Claimant can then either sue or obtain a court-ordered injunction.
5. Optionally Claimant can pay a nominal fee for "human decision-making" by Google or a mutually agreeable arbitrator.
6. Respondent has 14 days to file their own nominal fee to move it to arbitration or can proceed to countersue.
This would pretty much entirely remove the ability for regular people outside the US to use the DMCA while corporations to abuse the system. Corporations don't really need that help and can get a court to approve an injunction instead - if they don't already have a business relationship with the host they can levarage to get the content taken down.
No, requiring any party to be damaged based on accusations alone is absurd. Copyright infringement is not a life or death matter. It can wait for a judge to at least look at the matter. And if that is too expensive for society then maybe reconsider copyright instead of externalizing the cost required to maintain the fiction that information can be scarce.
It needs to be easier to claim damages from inaccurate takedowns. Not only do you need to prove that the claimant knew his takedown was false, you also need to demonstrate "tortuous business interference".
A simple, fixed price minimum damage for inaccurate claims would solve this. No more robo-claims because a forum user mentioned keywords which a poorly written scraper matches to their (brokered) client's intellectual property.
