Speaking from direct personal experience with DMCA takedowns in the app store specifically, Apple threatens the developer with removal of the app from the store but does not actually do it for at least the first 30 days of the complaint.
In order to qualify for safe harbor protections, Apple must take down content "expeditiously." So I'm under the impression that they actually waive the DMCA harbor entirely, and decline to process requests. IANAL, and Apple has much better lawyers than I do, so it's possible that "expeditiously" means something other than what I think it means.
Let's say you wrote a game. Someone could copy the assets, release their own game and claim infringement against you. You're saying Apple should pull your game until you can disprove infringement? That doesn't sound reasonable.
You may not like it, but that is the way the law is written. It is why so many people disagree with the way the DMCA works.
There are many documented cases of large companies using DMCA takedown requests to suppress material that they just don't like, with no valid legal claim on it.
No it isn't [0]. The way DMCA works is that someone files a claim, Apple pulls the app, the defending party files a counter-claim, Apple restores the app. Now it's between the two parties. It's not Apple's role to be the judge to which one must disprove infringement.
Has anyone ever actually been punished for false DMCA takedown notices? I know it hasn't happened in any of the false takedown notice cases I'm familiar with.
The only requirement is that the DMCA claiment swear, under penalty of perjury, that they are authorized to make the demand (they are the copyright holder or authorized agent). No other penalty / liability against the notice server is provided for in the statute.
Unless I'm misremembering, that was not a part of the original statute & was added later. The criticism I gave was fairly common immediately following passage of the DMCA.
(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
IANAL, but those two words "knowingly" and "materially" are extremely huge caveats that should make it very easy to avoid any liability for carefully crafted false takedown notices.
That's not how the DCMA works however. The purpose of the DCMA is accountability not enforcement (when it comes to the Safe Harbor provision).
Runic can, through the DCMA ensure that the content is either taken down, or they are put in touch with the party they assert are infringing. From there on out, it is the responsibility of the two parties to work out, as far as the DCMA is concerned.
That said, Apple can do whatever they like with their platform, and show little compunction about doing so.
I'm reminded of all of the cyberpunk Gibsonian/Stephensonian worlds where governments have given way to governance by and for corporations. Welcome to the future.
Without it, Apple is directly liable for copyright infringement. They are making and distributing copies of Torchlight's work without authorization each time someone downloads the app; the fact that some other entity provided it to them does not absolve them of liability for this infringement.
If Apple wants to shed liability for the copyright infringement they are committing they would be required to promptly remove or block access to the alleged infringing content, not simply put the notifier in touch with someone. If they don't remove or disable access, they don't qualify for the safe harbor provision of the DMCA and remain liable.
Even should Apple block access, they do not remove themselves from the equation; you are wrong to say it's now solely in the hands of the two parties as far as the DMCA is concerned. Instead, the alleged infringer now has an opportunity to file a counter-notice disputing the claim of infringement. When Apple receives this counter-notice, to retain their safe harbor protection from liability, they must now promptly restore access to the content.
This serves as protection against excessive damage done by false claims of infringement. Apple and other service providers are not expected to decide the merits of either claim. Simply take down upon notice of infringement, restore upon counter-notice.
Only then is the situation left to the two parties and the courts to resolve.
How exactly is that incompatible with what I've said?
The DCMA assumes that Apple, acting in good faith, will resolve Runic's issue by either taking down the infringing content, or putting them in touch with the supposedly infringing party. The infringing party, if they believe Runic to be incorrect can then counter-file, to ensure the content is not taken down, and then from there Runic and the infringing party are the ones responsible for dealing with the legalities of the issue not Apple.
> How exactly is that incompatible with what I've said?
I believe I just gave a point-by-point of how that's incompatible with what you said. I'll be more explicit:
You said "through the DCMA ensure that the content is either taken down, or they are put in touch with the party". I said that putting you in touch with the party is not sufficient under the DMCA; it's not an either/or situation.
You said "from there on out, it is the responsibility of the two parties to work out". I said that Apple's responsibility does not end at the takedown notice, they're also responsible for handling the potential counter-notice and restoring access to the content.
Then you made some silly comment about governance by corporations, when the DMCA requires those corporations not decide the merits of either party's claims; in a dispute, it is required to leave the content available and force the parties to court to resolve the situation. If they don't do so, they retain full liability for the copyright infringement.
You didn't say all the other stuff you just edited into your comment, not that it corrects all the issues with your original statement.
This is completely wrong. The Safe Harbor provision gives a content site the ability to be safe from infringement if they comply with the specific rules set forth in the DMCA.
The onus is on the content provider first and foremost. They need to remove the material and then notify the provider of the material. If the provider can show it's theirs it can go back up. If they can't, it needs to stay down. If the DMCA notice is completely wrong, the provider of the material can go after the accuser for monetary damages. If Apple doesn't take down infringing material, the are no longer under safe harbor[1].
That said, Apple can do whatever they like with their platform, and show little compunction about doing so.
You were defending Apple for not taking down the offending material say that they don't have to because the DMCA gives them safe harbor, and that's completely untrue. Apple is complicit in the infringement until they take it down 'expeditiously'.
>Runic can, through the DCMA ensure that the content is either taken down, or they are put in touch with the party they assert are infringing. From there on out, it is the responsibility of the two parties to work out, as far as the DCMA is concerned.
That's exactly why they would make the DMCA complaint.
