I feel like something is wrong with my understanding of DMCA.<p>Let’s say I want HN to change its logo for 10 days.<p>1. Find HN’s host, data center, or data center’s ISP.<p>2. Send a DMCA takedown notice claiming that HN’s logo violates my copyright. Signed: Jane Doe<p>3. The host/datacenter/ISP is required to process all properly submitted DMCA notices, lest they lose their Safe Harbor status. HN submits a counter-claim, but the logo still has to stay down for 10 days according to DMCA.<p>This probably can’t actually work in practice. Why?
> This probably can’t actually work in practice. Why?<p>It often does. Because of the asymmetric penalties in the DMCA. Yes, they are required to process all "properly submitted DMCA notices", which means they can legally ignore "improper" notices. But to determine "properness" requires a lot of work (read as: costly) and if wrong in that determination, they become liable for damages (which for copyright can be statutory damages of $150000 per violation). Which can make being wrong in the "properness" determination very costly.<p>On the other hand, they can "take down" the content, even if the notice is improper, and there is no penalty for doing so. This path is easy (read as: very inexpensive).<p>So most hosts simply default to the cheap alternative. Take the content down, and let the user who posted the content file a counter claim. This shifts the liability from the host to the user, thereby allowing the host to maintain their DMCA safe harbor and avoid those potential statutory copyright damages that /could/ result from the alternative path.<p>The DMCA does include a perjury penalty against the original submitter, but in order to enforce that the receiver has to separately file a lawsuit against the sender alleging they perjured themselves in creating the notice. This, also, is a very expensive path to take, and so third party intermediaries are not likely to pay this amount of cost on behalf of any given small user. And unless the person who posted the content originally has sufficient personal fortune to pay for this path, it is almost never taken, so senders of false DMCA notices never see any negative feedback on their activities.
> Why?<p>It can work against a <i>host</i>, but not a data center that is not a host, and not against an ISP that is not a host (note, "data centers" and "ISPs" may also offer hosting services, in which case they are, with regard to those services, hosts.)<p>The DMCA safe harbor notice/counternotice takedown/restoration process at 17 USC 512(c) doesn't apply to entities that are entirely immunized by 17 USC 512(a) because they provide only transitory storage and transmission at the direction of a third a party and/or by 17 USC 512(b) for providing system caching at the direction of a third party.
Step #2 is trickier than it seems, because you can't just make up an identity and you need to include details.<p>Step #4 (not shown) is where the entity that you did this to has their lawyers grind you into a fine paste. That's why most of the DMCA fuckery happens to targets that can't fight back.