I think that until the USA gets rid of legal lobbying from interest groups (aka, legalized corruption), this kinds of things will keep happening. Having to pull content down without any order from a judge is nonsense. These companies would be more careful if they had to go through some legal process instead of just ordering their lawyers to send empty threads to people that can't financially afford the economic burden of a long and expensive litigation.
People should have the right to legal representation no matter the circumstances. Judges also need to be biased towards the less powerful party for obvious reasons. Some huge corporation wasting an individual's time with clearly bogus lawsuits should be heavily punished.
> Having to pull content down without any order from a judge is nonsense.
An ISP is not required to pull content down when they receive a DMCA takedown notice. If the ISP takes the content down, however, they receive immunity from liability for any alleged copyright infringement. The ISP usually doesn't have the time or money to investigate whether the takedown notice is legitimate or not, so their first reaction is to take the content down.
Cases like this, where the person sending the takedown notice doesn't seem to understand that the ISP isn't hosting any infringing content, are pretty rare. If the ISP in this case reinstated the content, then the copyright owner would do more investigation before actually filing a lawsuit. If that happened, they would find that there isn't any actual infringement, so they wouldn't file a lawsuit.
Keeping organized advocacy from financially supporting representatives they approve us would mean what? Only the rich can be elected? Only the already popular can run? Only those the media and our tech overlords approve of can run? Would we even know of AOC if your rules were passed?
I absolutely agree with your point that the laws need to be passed so that corporations can't threaten abusive litigation over this kind of crap. But muzzling organized advocacy isn't the answer.
How do you propose a group of 50,000 people interface with their elected congress critters? Individual email? A chosen spokesperson to 'lobby' their interest?
If an individual company chooses one employee(say someone with a legal background) to interact with an elected official is that person a lobbyist or an employee?
Representatives were supposed to scale with the population so that one rep could reasonably represent all of the people in their district.
There are tons of ways to restructure the US legislative system that would ameliorate the current problems -- uncap the number of reps, allow individuals to override a fractional vote of their rep, split representation into technocratic branches and let everyone vote for a different rep on each domain, let people vote for committee membership, switch to approval voting or proportional representation, introduce term limits for reps and their staff, etc.
The Wyoming Rule (i.e no District should be larger than the the least populous State AKA Wyoming) would put the US House at about 850-860 Representatives
The main issue is that when the industry lobbies the politicians, in the USA, it tends to mean that they are writing them big fat checks as "political donations". This is corruption plain and simple, and a huge stain on the integrity of American politics. This kind of crap also does pass elsewhere, but at least when the industry lobbies politicians in other places it tends not to be so open and blatant.
Players of PSO2 (an MMO game) will tell you that SEGA is notoriously improbable to get a hold of, and they don't respond much beyond automated messaging to issues re: bans.
A couple friends were banned erroneously via an automated purge of around 10k+ players. Their customer service was stone silent.
Randomly with no communication, one of their accounts was back online after a couple months.
It's worth mentioning that these were premium members, paying around $15 a month, with 1000s of hours spent playing. No apologies. No refund for their time banned.
I don't have a good feeling of their methodologies and business practices. It's a part of the reason why I stopped playing.
Recently had the same experience with Activision, turned out I was shadowbanned because my name contained the word "Erotica". No phone support, email or chat, I ended up finding a solution in a single thread on Battlenet forums.
Battle.net allows names that are banned by Activision, and when logging into COD it was automatically imported, banning my account.
Add Oculus to the list of terrible support. It took ~100 days to resolve an issue with them disabling my account. It is pretty hard to talk to a human without having to wait a week.
Never buy any hardware directly from them. If you have any issues with an order it's a nightmare. Still out ~$435 as well.
I hope they consider taking Sega to court over this. Sega’s behavior is clearly in violation of the law, and a precedent needs to be set. Perhaps the EFF or a similar organization would be willing to represent them.
They would crush any small company in the prelude, even if they didn't intend to. I dont really think that copyright can be fixed, but at the very least we would need new laws to the effect of if you get sued for wrongful dmca, you pay the oppositions legal fees in addition to lost income and you risk losing the ability to make takedowns if the claim was in bad faith or negligent.
Small claims court is also an option. This is a hobby site, after all. It’s also a clear cut case. How many takedown notices have they sent? What percentage got kicked back historically? Non-zero? Then they knew they were sending fraudulant claims. If not, they still knew this claim was fraudulent after the site responded and they kept filing takedowns anyway.
Did they address these issues by carefully vetting things they signed under penalty of purgery? Clearly not. The facts speak for themselves. Case closed, I think. I’m not sure you really even need a lawyer (though one would help).
Sega should be taking their lawyers to court. The amount of tarnish to their brand they have garnered from gross incompetence is surely breach of contract somehow.
> Shouldn't Cloudflare have some form where SteamDB could state "we don't infringe on your copyright" and then it's up to SEGA to take this to court?
Not really.
I mean, yes, the DMCA provides an additional safe harbor for putting stuff back up in response to a counternotice, but most providers have structured their relationship with users such that they are certain to have no liability for a takedown-and-keepdown in the first place, so they have very little incentive to have a counternotice process.
The difference between safe harbor requirements and real legal requirements is that whether there is any force behind the former depends entirely on whether you have any preexisting liability for the safe harbor to protect you from.
Hire some lawyers, have them send a letter back that says "no" surrounded by a lot of words and wait. It'll either resolve itself or they'll win in court, either way is okay.
SteamDB is a hobby project by two guys - I doubt they want the cost of a lawyer or headache of a legal defense. They may also get suspended by CloudFlare in the meantime.
I think a response would take about 30 minutes billed time to tell them that it's fair use. If Sega decided to drop their DMCA claim, I don't think the cost would exceed 2 hours billed time even if they decided to write back or schedule a conference call about it or whatever. Depending on the nature of the claim, Sega's real disposition, and what was on the page, a counternotice might have sufficed to clear it up without ever contacting Sega.
Note that what they did really is fair use -- there are lots of situations in which people think that fair use extends farther than it really does.
Hiring a lawyer to fight a DMCA claim is not the same as hiring one to defend you in a lawsuit or a criminal matter.
> Hiring a lawyer to fight a DMCA claim is not the same as hiring one to defend you in a lawsuit or a criminal matter.
It's still expensive. Two hours of time can cost you into the thousands of dollars; more if you are unlucky enough to get a scumbag of a lawyer.
And there's nothing resembling a guarantee that the letter alone will work. Fair use is a positive defense, which means that you're admitting that you are infringing on their copyright, only you believe that you're within the allowed limitations.
Large corporations can and do easily push the discussion into the court system, since the court is the only entity who can ultimately judge whether something is fair use or not. Suddenly you're up to much more than a couple of hours with your lawyer, only to have the corporation drop the suit at a late hour and leave you with nothing - no judgement in your favor, no recompense for your costs.
On the other hand, raising a stink on Twitter seems to accomplish the same goal, and is free. As much as I dislike the pathology of modern social media, it does seem to be an effective tool for individuals to defend against businesses, big or small.
Don’t you think there’s something inherently wrong with a system where someone can either afford to stand up to a (possible) bully or they can’t? Absent the intervention of public outrage the side willing/able to withstand more legal fees “wins” these fact patterns the vast majority of the time. To me, that doesn’t seem like a system designed to achieve the intended outcome in the spirit of the law.
Yes, there's something inherently wrong with it. That said, there's no sense arguing too hard against systemic injustice here because there are way too many folks that hate being nice to have that not end with your comment flagged.
Until there is a financial penalty for fraudulent or "mistaken" DMCA claims there is no reason for companies to make even the most basic effort at due diligence.
The DMCA should be repealed, but won't be, so instead should be updated to make erroneous claims have a financial penalty. Nothing major at first, but ratcheting upwards for every false claim. Oh, and all legal expenses for the victim party of course.
Since access to justice scales with money, it's no surprise that one company's poorly-made bot can potentially destroy an individual's work of love, they're more-or-less equals.
I can hardly imagine anything more unjust than using devices of justice to create unjustice.
This is only enabled because of the power imbalances between flesh-and-bone humans and corporate entities, unless that is addressed we'll be seeing more and more ridiculous SLAPP suits, DMCAs, power grabs and other stuff that would fit in a cyberpunk novel.
As long as ‘on penalty of perjury’ has absolutely no meaning this will continue forever. There can be no balance without consequences for false takedown requests.
"On penalty of perjury" basically always means nothing. Since being wrong isn't a crime, they have to demonstrate that you knew you were lying, which is either going to be impossible, or a long drawn out investigation.
It is ironic that if you're wrong about content being infringing and get it taken down, there's no punishment unless you intentionally lie. If you're infringing, but thought your use was fair use, you've still committed a crime.
I do wonder how some of these satisfy the "good faith" clause, though. This isn't one of those cases (I think Sega is wrong, but I can see how they meet good faith here). Some of the other cases have involved filing DMCA complaints against Wikipedia for completely unrelated articles. Once or twice I've seen companies files DMCA complaints against themselves. I can't see how that could possibly be in good faith; they clearly haven't even looked at the content, which should preclude any claim of "good faith". You can't make a good faith argument if you have no idea what you're even arguing.
How effective is the DMCA in being a force for good? I continue to see stories where it seems they combine all the fun of a jury summons with the customer service of google.
To me, this SEGA claim seems to border on a perjury violation for false DMCA claims (IANAL). But in practice, the victim has neither the ability nor funding to utilize the legal mechanisms for discouraging this behavior. To say nothing of the second issue which is Megacorporations having no obligations to communicate with the proles. And a third issue naturally consequent elsewhere: the hamfisted DMCA enforcement from the major media platforms.
I'm sure this horse has been beaten to a pulp at this point, but are there any good breakdowns of the merits in DMCA repeal/reform/status quo?
Speaking totally anecdotally here, but one of the big benefits I see in the DMCA system is the ability for individuals to have an easy, free way to deal with any copyright infringement. I have a few friends who create art as a hobby, and they have been able to deal with people or companies who illegally re-upload their art for monetary benefit (such as merchandise).
Obviously the system isn't perfect (and there are absolutely better solutions), but it does have its merits.
A friend was selling some DRM-free PDFs and found one on a site with user uploaded content, one simple form later and zero lawyers it was gone. I think that's a positive, what is missing is a) a simple way to fight back against a bigger opponent, which should be a simple counter claim, but often isn't because b) many hosts don't really follow the DMCA to the letter and ignore safe harbour because they're worried about the profiting clauses that nullify safe harbour.
> Efforts to contact SEGA have proven fruitless but hopefully the company will eventually notice its mistake and withdraw its demands for SteamDB to be taken offline.
A false DMCA takedown is equivalent to perjury. If SteamDB were to counter-sue Sega, Sega could be punished for perjury, forced to pay SteamDB's lawyers fees, and potentially lose their copyright on the content they claimed was violated.
Really? If the risks for making a false DMCA takedown request were that high, I would expect to see less false takedown notices, and less aggressive bots. Or maybe the aggressors are just assuming that the victims don't have the resources to fight a megacorp in court? If it's the latter it seems like an organization like EFF should step in to fund such a fight.
I believe for all of the above to apply, it would have to be proven that the request was knowingly malicious, as in they had full knowledge that the page did not infringe but decided to send a takedown notice anyway. That's highly unlikely, and good luck proving it anyway.
However, they are still liable and can absolutely be sued civilly for an improper takedown notice. But the penalty probably wouldn't extend beyond a monetary payment.
> Their inability to route that information to the right person should not be a valid defense or else incompetence becomes a business advantage.
I don't mean to sound trite but hasn't it pretty much been proven to be already?
Look at things like the Equifax situation. A competent team performing security reviews and fixing and maintaining things would cost money. Repeat for N data breaches. And that's just software security -- it doesn't consider even more serious cases like those of infrastructure failures (bridge collapses, levee failures, dams breaking etc.) that have more important consequences.
I agree with what I believe was the main point you were making which is that SEGA should not be excused here. I just think businesses have come to view competence as being expensive and so it's optional, and that this seems to be somewhat okay with people until it directly affects them.
So the approach is to write a bot, do zero human checks and then say "well, see, yes, we sent this complaint, but we didn't actually send it ourselves, the bot did, so we didn't know that it was wrong, because we've decided to never check these things before sending them out"?
It's weird, when you can write a program to do something in your name and as your agent, and then claim "it totally wasn't me, lol".
More generally: we need a legal framework that makes people deploying automation responsible for what the automation does to the same extent as they would be if they hired people to do the same work. "It's a false positive in an automated system" should never be acceptable justification for invalid legal action, nor should it be used as extenuating circumstances. Either you're prepared to pay for the mistakes of your algorithm, or you should not be deploying the algorithm at all.
If you knew that your algorithm produced false positives and you deployed it anyway, then you had fraudulent intent for the subset of automatically generated takedown notices which were false positives.
Say that the false positive rate is 3 in 4, so that 75% of takedown notices are invalid. Do we have fraudulent intent? I dare you to tell me that we don't.
OK, we've established that delegating to an algorithm doesn't provide an impenetrable shield. Now it's just a question of how irresponsible you have to be for the court to go against you.
Now, is there any difference between the injured parties who are affected by your false positives when that rate is 1% versus 75%? For the subset of assessments affecting the injured party, your false positive rate is effectively 100%. Why should they bear your burden?
An algorithm can be used to identify prospects for takedown notices. If you choose not to vet those prospects, then any mistakes are on you. If you can drive down the false-positive rate low enough, you might choose to accept the costs every time you falsely accuse someone and turn the algorithm loose anyway. But if you can't absorb the costs of the algorithm's mistakes, don't rely on the algorithm.
You put out a product knowing that it can fail in X (very long) time or Y (highly unlikely) scenario. Does that mean you intentionally put out a faulty product?
"This process is inherently subjective, so creating perfect software while properly protecting our copyrights would be impossible. We determined that the false positive rate would be quite low, and had no intention of pursuing action against any invalid claims."
IANAL, but I think it's when, in a follow-up lawsuit, they find emails or other such evidence showing the takedown submitting party did so with knowledge that it was a false notice ahead of time. If you can't find something like that, then it stays negligence.
(There's a couple of points in a DMCA notice that are certified under penalty of perjury, but they aren't the 9bes that are likely to be be false on a false one in the first place.)
As long as the lawyers that filed this DMCA takedown really represent Sega and Sega owns the copyright that they claim is infringed, then there is no perjury. It is irrelevant if the notice is otherwise frivolous.
This has nothing to do with patents. They're not trolling, which is generally registering something and sitting on it waiting to sue. Sega is a practicing entity with a copyright on a game that's actively being sold.
Someone's made a mistake in this DMCA complaint and Sega's being difficult to reach to resolve it. It's nothing like patent trolling.
Sega has army of lawyers and probably massive budget for court fees vs a small 2 people run shop who are actually not infringing anything and don’t have any of those resources. You get where this is going?
Let's not redefine "patent trolling" as bad thing big bad company does. This was clearly a mistake borne from the outsourcing of brand protection onto a firm that clearly is not the greatest at their job.
Thankfully, somebody in SEGA has responded and it should be soon resolved.
I thought your stereotypical patent troll wasn't a firm with access to top notch legal resources, just some people slinging enough shit that eventually it stuck? This would be pretty firmly different, right?
That depends who you ask, but there are two types of trolls. The first, as you describe, basically extort small settlements out of companies using garbage patents--the classic example being the guys who sued small businesses for using a fax machine.
The second are non-practicing entities that buy at least half-way decent portfolios for cheap and then sue big businesses for big settlements or big jury verdicts. Their lawyers can be very good.
It has nothing to do with patents. It's not a non-practicing entity making a claim against big targets hoping for a windfall. It's probably not even intentional from Sega themselves - people make mistakes, even lawyers.
Yes, it involves legal paperwork and the claim is empty. So why not call it a MAGA election suit? It has two things in common with those.
It is on SteamDB, right here[0]. It says in giant text "This page was taken down because SEGA is claiming we distribute their game here (we don't)."
However, if you search for the game in the SteamDB search bar (just enter "Yakuza", don't even need the full name), it will show up just fine, with a picture and all, you just won't be able to see the full page. That's how I found that link, so I have no idea how you missed it.
Persona 5 has sold millions of copies. Yakuza 6, Judgement, and Yakuza Like a Dragon all did well. I'm not really interested in Football Manager but I know it's incredibly popular
