All DMCA Notices Filed Against TorrentFreak in 2023 Were Bogus

Original Article ↗ Hacker News Discussion ↗

Bogus DMCA takedown notices against TorrentFreak in 2023 are used as a jumping-off point to criticize how easily the DMCA can be abused, especially by large rightsholders using automated systems with little oversight or consequence. Commenters debate reforms such as mandatory filing fees, harsher penalties (including fines or even loss of IP rights) for clearly false claims, and thresholds that distinguish honest mistakes from systematic abuse. The exchange also revisits the constitutional purpose of copyright, arguing that current terms and enforcement practices often undermine the intended goal of promoting science and the arts while placing most of the burden on smaller creators and platforms.

Perceived Problems with DMCA

  • Many see DMCA as “weaponized”: trivial to file, costly to defend, and nearly no downside for false claims.
  • Safe-harbor for platforms is viewed positively, but the notice-and-takedown side is considered heavily biased toward rightsholders.
  • Complaint that current practice makes end-users and small sites “guilty until proven otherwise,” with content removed first, dispute later (if at all).

Proposed Fixes and Incentive Changes

  • Require filing DMCA notices through courts, signed by lawyers, with potential sanctions (including disbarment) for negligent or abusive filings.
  • Introduce mandatory fees or deposits per notice (suggestions range from $1 to $100+):
    • Refunded if claim is upheld.
    • Paid to the target or retained to fund processing if the claim is bogus.
    • Repeated false claimants could be suspended or banned from filing for some period.
  • Alternative penalty proposals:
    • Significant statutory fines for abusive notices.
    • Disqualifying serial abusers from the takedown system.
    • In extreme proposals, reclassifying abused IP as public domain.

Fair Use, Accuracy, and Error Tolerance

  • Debate over whether rightsholders should be expected to be “100% accurate”:
    • One side: if you’re not certain, you’re abusing the system.
    • Other side: fair use and derivative works make perfect accuracy impossible; systems must tolerate some error.
  • Distinction drawn between:
    • Reasonable but wrong claims (e.g., fair use disputes).
    • Clearly bogus claims (wrong URLs, wrong works) that should incur harsh penalties.

Small vs. Large Rightsholders

  • Concern that fees could burden small creators, while big companies treat them as a cost of doing business.
  • Counterpoint: abusive behavior overwhelmingly comes from large entities; fee structures could scale with size or activity.
  • Some argue that if manual review is too expensive, the enforcement isn’t worth doing; automated mass takedowns shouldn’t be excused.

Constitutional Purpose and Copyright Term

  • Cited constitutional language: copyright exists to “promote the progress of science and useful arts.”
  • Several argue modern copyright (especially very long terms like 70+ years) no longer serves this goal.
  • Others note the U.S. still produces abundant science and art, suggesting the system works reasonably well despite flaws.

Perjury, Legal Recourse, and Practical Limits

  • Clarification: the “penalty of perjury” in DMCA notices applies only to the claim of being authorized to act for the rightsholder, not to the accuracy of the infringement allegation itself.
  • This greatly limits legal recourse for targets of bogus notices; proving bad faith is hard.
  • Some suggest state attorneys general or precedent-setting lawsuits could help deter abuse, but acknowledge practical and political obstacles.