Can you explain why you would record an infringement before the three day window for counter notices has expired? You have no section for decrementing/annulling infringements or re-enabling accounts, so if you follow this process, I can disable your users' accounts simply by filing two bad-faith DMCA notices.
Yes, you could do it the other way and wait until the three day window expires. There are two reasons to do it before.
1. It's less bug-prone. If you forget to increment the counter later you have a big problem. But if you forget to decrement the counter later you are only in a little bit of trouble.
2. If you get a flood of notices about a user before the three day window expires, you probably have an obligation to disable the account.
About a DOS based on bad-faith notices, this does less business harm to you than a failure to act.
That said, I agree that decrementing the counter needs to be covered. I'll treat that as a bug report and look for a fix.
Interesting argument I heard last week[1]: the "penalty of perjury" applies to the statement "I have the authority to act on behalf of the stated copyright owner", not to the statement "This content belongs to me."
Which if true, may give you legal cover for both accidental and malicious claims.
Yeah and I would like to see how often this actually gets enforced. The fact of the matter is that DMCA is being abused all over the Internet to silence people, but I can't say I've heard of a single case of "he abused the DMCA, now he's going to pay a huge fine."
In my opinion such a case is bound to come about. The Axl Rose 'meme purge' attempt via DMCA didn't seem to do much legally speaking, only be another Streisand Effect situation. The rights 'representative' though in the Axl case would - I think - be a good test for the legal aspects. Authorized representation makes sense, and if the rep can show tangible proof of assignment (i.e. owner genuinely owns property in question, like the photo rights) then the DMCA looks to be working as intended. Tests are pretty needed though, I agree.
Proposed improvement: mark the actions that are legally required. I've waded through enough technically-ambiguous regulatory language to know that having a clear requirement/recommendation distinction can be pretty helpful.
Other than that, seems like a decent guide (with the non-legal advice caveats). Good job, author.
I have created an updated version to incorporate comments.
Most comments were about when to decrement the infringement counter. Some went to important unknowns like the threshold of proof before incrementing the infringement counter.
To facilitate ongoing work, I have created a Github version of the project:
The flowchart doesn't have a path for if you get a notice that the agent has actually followed suit - I'll take that as a commentary on the process as it's so incredibly rare.
