Isn't that how the DMCA works, there's no need for Nintendo's lawyers to do any threatening apart from a DMCA form letter - if it's filled out enough to be intelligeble, the recipient (Gitlab) has to abide and then there's a theoretically a challenge process available for the target (that is very stacked against the target), and in practice no penalties for illegitimate DMCA requests.
Could individuals in collusion theoretically use well timed DMCA takedowns to keep e.g. nintendo's own services and brands taken down from their own platforms? (Or just third parties?)
Claiming to own the music or imagery from Mario, for instance, and just continuously sending another takedown timed to keep them suppressed as I've heard of occurring with youtubers?
There's a bit in the law text that supposedly penalises bad DMCA requests (ie the sender must consider if it's fair use, etc) but it's turned out to do nothing in practice and for example fair use covered stuff on youtube just gets repeatedly DMCA'd even if by some miracle the target has the time and energy to try to counter it.
(A concrete example I remember off the top of my head is on a blog that doesn't welcome HN links...)
The DMCA is significantly skewed in favor of copyright holders (and senders of DMCA notifications on copyright holders' behalves). The only "penalty of perjury" part for senders is claiming to be the copyright holder or someone authorized by the copyright holder to send the takedown notice (17 U.S.C. § 512(c)(3)(A)(vi)) [1]:
> (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.
As for justifying the claim of infringement, the sender only needs to claim good faith (512(c)(3)(A)(v)) [1]:
> (v)A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
The person whose upload was taken down can file a counter notification, but must dispute the takedown under penalty of perjury (512(g)(3)(C)) [1]:
> (C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
In Lenz v. Universal Music Corp. (2015), the Ninth Circuit decided that the copyright holder (or at least the sender of the DMCA notification) must consider whether the user's uploaded material is fair use before filing the notice, but the user's burden to disprove the copyright holder's claim of good faith remains exactly the same as before the Lenz case. From the case text [2]:
> To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion.
Or as the Harvard Law Review put it [3]:
> In short, the fair use determination does not have to be correct or reasonable; it just has to have happened. The court in Rossi held that the jury therefore had to determine if Universal’s actions sufficiently approximated a fair use analysis (even if not labeled as such) on which it could have formed a subjective good faith belief regarding fair use.
