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> The DMCA takedown procedure (including that safe-harbor provision) provides a special incentive towards compliance with 'content owners' (who may or may not actually own the content in question), apart from but dependent on litigation.

It provides an equally special incentive to comply with users; the safe harbor has two sides.

The difference in effect is the same as the difference in effect in threat of litigation absent the safe-harbor: the difference in resources on the two sides and the significance of the liability the host might face from either side.

> The situation before the DMCA was preferable

If you didn't want to have big businesses freely hosting user-submitted content, maybe. Content owners weren't the backers for the safe harbor (they wanted the freedom to sue first and get money), content hosts were. It doesn't create additional incentives for content hosts to comply with content owners (real or purported), it removes pre-existing opportunities for content owners (again, real or purported) to extort content hosts.



It provides an equally special incentive to comply with users; the safe harbor has two sides.

It provides very nearly no incentive whatsoever to comply with users. What provisions it does provide are practically unenforceable due to absurdly high standards for users and absurdly low standards for 'content owners'.

I don't care a whit for your interpretation of the law. Especially when your interpretation flies in the face of the text of the DMCA (see in particular sec 202 on standards for perjury, which differ significantly for notices and counter-notices). I care about results - and the results, across dozens of major content hosts, speak for themselves.

The DMCA has not only failed to protect users and content creators who aren't 'content owners', it has also given rise to independent policing mechanisms modeled on and derived from it but with even fewer protections.


> I care about results

The results are basically identical to the pre-DMCA situation except that the risk of monetary damages to content hosts is less -- most content hosts takedown material immediately on request by purported content owners to prevent lawsuits, and most content hosts don't care much about complaints from users (including counter notices) because the litigation threat is miniscule. The DMCA safe harbor provides a defense against litigation for content hosts who comply with notices and counter-notices, but it doesn't change the fact that, with or without the safe harbor, the only litigation threat content hosts are worried about is litigation by purported content owners, not litigation from users (because, in the first place, they already have an agreement with users, and content hosts are careful to construct such agreements to foreclose any litigation threat resulting from the host deciding not to host any particular content.)

Any imbalance in the perjury provisions that makes counter-notice more risky is irrelevant, because the user-side safe harbor is irrelevant, because a safe harbor only matters when, without the safe harbor, there is a threat of litigation that matters.

My point is, and remains, that the problem you are referring to in results goes far deeper than the DMCA safe harbor, and balance between the two sides in the safe harbor provisions don't matter, because only one side of the safe harbor has any meaning -- content hosts don't need a safe harbor against users.

That being said, I'd support much stronger standards on the notice side, not for some completely pointless idea of balance, but because the practical results of false notices are the suppression of speech; for that reason, I'd propose creating the following standard for liability for material misrepresentation in takedown notices:

Any material misrepresentation in a notice (whether knowing or not) would make the party filing the notice liable for actual damages to content hosts and/or users resulting from notice.

Any material misrepresentation in a notice where the filing party either knew the representation was false, or reasonably should have known the representation was false, or cannot show by clear and convincing evidence that they had a reasonable basis to believe was true with high confidence, will also allow punitive damages.

And the entire content of a notice should be under penalty of perjury.

But none of this is about balance between notice and counter-notice, which -- aside from being irrelevant -- shouldn't even be a goal in the first place, its about what the standard needs to be given the that what is being created is a government-provided incentive to suppress speech.




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