To the best of my non-lawyer-y knowledge, neither of those is the case. Rather, if the DMCA requests are not responded to, then the host may be liable for the infringing content as well. The sequence of events is as follows, with "host" referring to the hosting service, "user" referring to the person who uploaded material, and "lawyer" referring to the person representing the copyright holder.
- User uploads material to the host. Host did not make editorial decisions on the content, and is therefore not liable for infringement in the content (safe harbor).
- Lawyer sends DMCA takedown notice, attesting that they believe the content infringes lawyer's copyright. (Does not have to actually infringe, just need to be a statement that they believe it does.)
- Host receives notice, and now has a choice. If they take the material down, they have no legal liability to either user or lawyer. If they leave it up, lawyer can sue host along with user for infringement.
- (Assuming host takes material down), host then notifies user.
- User can respond with a counter notice, under penalty of perjury, they believe the takedown notice was mistakenly given.
- Host tells lawyer that a counter notice was given.
- Lawyer now has a choice. Option A is to file a lawsuit against user. In that case, material stays down until the lawsuit concludes. Option B is to sit in sullen silence. If no lawsuit is filed in 14 days, host can put material back up without any liability.
There are a couple major problems with this. The original DMCA request isn't under penalty of perjury, but the reply is. The original DMCA request doesn't require a copyright to be held, only a "good faith belief" that it infringes. The duration of 14 days may have made sense in 1998, with large companies being the only media producers, but now that takes a video down for several times the duration of interest, effectively killing it.
> - The original DMCA request isn't under penalty of perjury, but the reply is.
> - The original DMCA request doesn't require a copyright to be held, only a "good faith belief" that it infringes.
> - The duration of 14 days may have made sense in 1998, with large companies being the only media producers, but now that takes a video down for several times the duration of interest, effectively killing it.
I'm going to remember those points, especially the first. That is the real problem, in my opinion.
Also, from wikipedia, it looks like I was slightly mistaken. The initial claim is partly until the penalty of perjury, but only that they are authorized to act for the copyright holder. The statement on it being infringement requires only a good faith belief, and is not under penalty of perjury.
- User uploads material to the host. Host did not make editorial decisions on the content, and is therefore not liable for infringement in the content (safe harbor).
- Lawyer sends DMCA takedown notice, attesting that they believe the content infringes lawyer's copyright. (Does not have to actually infringe, just need to be a statement that they believe it does.)
- Host receives notice, and now has a choice. If they take the material down, they have no legal liability to either user or lawyer. If they leave it up, lawyer can sue host along with user for infringement.
- (Assuming host takes material down), host then notifies user.
- User can respond with a counter notice, under penalty of perjury, they believe the takedown notice was mistakenly given.
- Host tells lawyer that a counter notice was given.
- Lawyer now has a choice. Option A is to file a lawsuit against user. In that case, material stays down until the lawsuit concludes. Option B is to sit in sullen silence. If no lawsuit is filed in 14 days, host can put material back up without any liability.
There are a couple major problems with this. The original DMCA request isn't under penalty of perjury, but the reply is. The original DMCA request doesn't require a copyright to be held, only a "good faith belief" that it infringes. The duration of 14 days may have made sense in 1998, with large companies being the only media producers, but now that takes a video down for several times the duration of interest, effectively killing it.