If I understand this correctly, it's perjury if they claim ownership over a video of you playing some Bach on piano on Youtube (which has also happened), but it's not perjury if they claim ownership over something that doesn't exist at the claimed URL?
It's more complicated than that - recordings have copyright independent of the original works, so if you make a recording of Bach now, you have copyright over that specific recording even though the music itself is out of copyright. So if someone were to file a takedown request of someone playing Bach on piano on Youtube on the grounds that you had used a recording owned by someone they were authorised to act on behalf of (even if you hadn't used that recording!), that wouldn't be perjury. But if they were to make the claim that they were authorised to act on behalf of Bach himself (which, clearly, they're not), that would be perjury.
But if the video is simply you playing Bach, does that mean they fraudulently claim to represent you? Or are they fraudulently claiming Sony (or whoever) owns your video? Or are they merely correctly claiming that Sony owns something obviously unrelated to your video, and they're incorrectly but not fraudulently claiming that that thing is related to your video?
I guess it's the third option. Which is frustrating, because I think that it's still harmful, especially when it's so obviously false.
If they knowingly misrepresent a claim that content is infringing, they're liable for damages (17 section 512(k)(2)) but didn't commit perjury. If they are simply negligent in making a claim (eg, because a piece of software told them an infringement had occurred and they didn't actually verify that), they're probably fine. This obviously makes abuse trivial and if anything actively discourages people from verifying whether an infringement actually exists - if they do and then send the takedown notice anyway they're potentially liable for damages, whereas if they never bother then negligence doesn't seem to result in bad outcomes for them. The DMCA is bad law.
Can't somebody take the precedent set by those lawyers using ChatGPT to whip up nonsense for the court, and take these DMCA mills to tadk for conduct unbecoming for not verifying that, in fact, any software generated flag actually has merit before the Courts?
The Courts have been clear and unambiguous that their time is not to be wasted on BS, and that an attorney has the Duty of Care to ensure that what they vouch for is representative, and truthful.
Why is this still done at the scale it is if, in fact, the Courts are enforcing due rigor?
...The answer likely is, they aren't, and big tech is usurping the authority of the Courts to weigh in, thereby disrupting due process. In doing so, their legal team is committing the same censurious behavior, by advising their client to act unlawfully too.
Frankly, I'd start being thrilled at such notices if I could find an attorney willing to take a shot at holding notice generators to account for false positives, and service providers who cancel service without complying with due process accountable.
In fact, if the Courts were sufficiently dedicated to it, it would create a selection pressure on attorneys to ultimately be truthful, lest they be hunted by one of their fellow attorneys who actually is honest, and willing to check.
Who watches the watchers? Another watcher, with the incentive to reap a reward for proving the falsity of a claim.
Let the attorneys feast on one another for a bit, and eventually we should reestablish some sanity.
