Since DMCA takedown is not a court process, the question of “standing” is not relevant. Anyone “can” submit such a notice, the relevant issues would be (a) will it achieve the desired effect of takedown and (b) will there be legal repercussions for submitting the notice?
The basic logic of the DMCA is that a person submits a notice; the ISP takes the material down expeditiously and notifies the uploader; the uploader may file a counter-notice; if he does, the ISP waits for a couple of weeks and puts the material back up if the complainer does not file suit. It is not guaranteed that an ISP will take material down when they receive notice: there is no provision under the law that the ISP should or may evaluate the believability of the notice. Assuming well-informed and law-abiding practices by the ISP, the notice should be effective in causing the material to be removed, as long as the notice satisfies the formal requirements. (The infringement suit, if there is one, will be dismissed).
There may be repercussions for Alice filing such a notice. Germane parts of the law are 17 USC 512 (c)(3)(A), that the notice must have the following
(i) A physical or electronic signature of a person authorized to act
on behalf of the owner of an exclusive right that is allegedly
infringed…
(v) A statement that the complaining party has a [b]good faith
belief[/b] that use of the material in the manner complained of is not
authorized by the copyright owner, its agent, or the law
(vi) A statement that the information in the notification is accurate,
and under penalty of perjury, that the complaining party is authorized
to act on behalf of the owner of an exclusive right that is allegedly
infringed.
We would have to see the words of the notice Alice filed, to see what laws might have been violated.
18 USC 1621 criminalizes perjury as follows:
Whoever—(1) having taken an oath before a competent tribunal, officer,
or person, in any case in which a law of the United States authorizes
an oath to be administered, that he will testify, declare, depose, or
certify truly, or that any written testimony, declaration, deposition,
or certificate by him subscribed, is true, willfully and contrary to
such oath states or subscribes any material matter which he does not
believe to be true; or (2) in any declaration, certificate,
verification, or statement under penalty of perjury as permitted under
section 1746 of title 28, United States Code, willfully subscribes as
true any material matter which he does not believe to be true;
is guilty of perjury
The law of perjury is narrowly construed in the US, so to secure a perjury conviction, the government would have to establish that the person did not believe the literal words of the statement. Being mistaken, even if the error is due to egregious ignorance of or disregard for case law, does not support a perjury conviction. Other facts could, however, support the charge if they establish that Alice did not believe her statement (about being authorized to act). If the statement were “I have written authorization from Z, the author of work X, to act on his behalf”, that is likely to result in a perjury conviction. But one might actually (though incorrectly) believe that one had such authorization e.g. due to being the original author, so some statements might not be perjury.
Another consequence is via 17 USC 512 (f) which states:
Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing…
shall be liable for any damages, including costs and attorneys’ fees,
incurred by the alleged infringer, by any copyright owner or copyright
owner’s authorized licensee, or by a service provider, who is injured
by such misrepresentation, as the result of the service provider
relying upon such misrepresentation in removing or disabling access to
the material or activity claimed to be infringing, or in replacing the
removed material or ceasing to disable access to it.
On the face of it, there is no penalty for being wrong about your beliefs. An important case (the first case) regarding 512(f) is Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195. In this case, students published internal emails from Diebold (and did so for political reasons): Diebold filed a DMCA takedown notice. The students sued under 512(f), alleging a violation based on the fact that their copying was fair use. An important question is what it means to “knowingly materially misrepresent”. The court found that
A party is liable if it "knowingly" and "materially" misrepresents
that copyright infringement has occurred. "Knowingly" means that a
party actually knew, should have known if it acted with reasonable
care or diligence, or would have had no substantial doubt had it been
acting in good faith, that it was making misrepresentations.
The court’s further found that about Diebold “should have known” that they misrepresented the existence of infringement. The court stated that
No reasonable copyright holder could have believed that the portions
of the email archive discussing possible technical problems with
Diebold's voting machines were protected by copyright
The court does not explain why no reasonable copyright holder could believe that there was infringement, but as outsiders, we can guess it is that Diebold engaged lawyers who advised them that the copying was allowed under fair use. The reasonable care and diligence standard would make mistakes harder to get away with. But 512(f) is not about misrepresentation in general, it is specifically about misrepresentation of infringement. At least so far, the courts have not held that 512(f) extends to any incorrect statement that a careful person would have avoided (such as, whether they are likely to succeed in an infringement suit).
