Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report • Hacker News Board

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#21

Post by ikeboy » Tue, Jun 02, 2020, 5:29 PM UTC

elliekelly wrote: post #18

Buttons840 wrote: post #12

Earlier quoted context omitted.

Seems like a good idea to me. Are you thinking of small or large values for $X and $Y?

That is the question. If the dollar amount is too low then big companies could afford to abuse the process but if the dollar amount is too high it would be difficult for individual content owners to assert their rights. I was thinking $100 to file an initial claim and $50 to file a counter-claim but I really don't know. Or perhaps a mechanism where the cost to file an initial claim goes up to $1000 after a person/ent…

I really like counternotices being free. You shouldn't have to pay for standing up for your rights.

I'm open to payments for DMCA notices, but it shouldn't be forfeited just because someone filed a counternotice.

I think a better system would involve the escrowed money going to the other party, and allow some sort of small claims court to adjudicate those matters. Although it still feels extraneous. If there's strict liability for false claims and automatic lawyer fee awards then we'll get an industry of contingency lawyers taking such cases in hopes of an award.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#22

Post by elliekelly » Tue, Jun 02, 2020, 5:30 PM UTC

ikeboy wrote: post #19

elliekelly wrote: post #16

Earlier quoted context omitted.

> In what circumstances would escrowed money be forfeited? When a counter-notice is filed (and so the material at issue is put back online) but a lawsuit is never filed the $X would be forfeit. When a counter-notice is filed and a lawsuit is filed then both $X and $Y would be forfeit. > Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I would imagine $X and $Y being small…

Sounds too harsh for the first, unless $X is very low. What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.

> What if you learn from the counternotice that they're not going to be able to be able to pay a judgement?

You would still want the copyright-infringing material removed regardless of their ability to pay.

> you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights

In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#23

Post by wtallis » Tue, Jun 02, 2020, 5:31 PM UTC

ikeboy wrote: post #19

elliekelly wrote: post #16

Earlier quoted context omitted.

> In what circumstances would escrowed money be forfeited? When a counter-notice is filed (and so the material at issue is put back online) but a lawsuit is never filed the $X would be forfeit. When a counter-notice is filed and a lawsuit is filed then both $X and $Y would be forfeit. > Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I would imagine $X and $Y being small…

Sounds too harsh for the first, unless $X is very low. What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.

> And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.

If a lawsuit is filed, then you do have that chance to defend yourself, and win a judgment that includes expenses like filing fees.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#24

Post by zchrykng » Tue, Jun 02, 2020, 5:34 PM UTC

elliekelly wrote: post #8

ikeboy wrote: post #2

We need strict liability for false DMCA notices plus automatic award of attorney fees in a successful 512(f) case. Would fix 95% of the abuse.

I wonder if a system like this could work to prevent abuse: - Alleged copyright owners pay $X to file a DMCA notice - Accused copyright infringers pay $Y to file a counter-notice - Funds are held in escrow - If the accused doesn't file a counter-notice within 10 days the copyright owner gets their $X back - If a counter-notice is filed and the alleged copyright owner doesn't file suit within 90 days, no matter the re…

Unless the amounts in question are nominal, the accused infringers will just get crushed by copyright claims.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#25

Post by ikeboy » Tue, Jun 02, 2020, 5:51 PM UTC

elliekelly wrote: post #22

ikeboy wrote: post #19

Earlier quoted context omitted.

Sounds too harsh for the first, unless $X is very low. What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.

> What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? You would still want the copyright-infringing material removed regardless of their ability to pay. > you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights In the US you are almost always required to automatically pay money in order to asser…

>You would still want the copyright-infringing material removed regardless of their ability to pay.

But it might not be cost effective to file a suit. Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged.

>In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees.

That's if the courts are involved. The nice thing about the DMCA is it provides a completely free way to assert your rights, and the other side must file a lawsuit in order to change that. I guess your proposal would still require a lawsuit to be filed before you actually lose money, but even putting money up in escrow seems like too much to require.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#26

Post by wtallis » Tue, Jun 02, 2020, 5:58 PM UTC

zchrykng wrote: post #24

elliekelly wrote: post #8

Earlier quoted context omitted.

I wonder if a system like this could work to prevent abuse: - Alleged copyright owners pay $X to file a DMCA notice - Accused copyright infringers pay $Y to file a counter-notice - Funds are held in escrow - If the accused doesn't file a counter-notice within 10 days the copyright owner gets their $X back - If a counter-notice is filed and the alleged copyright owner doesn't file suit within 90 days, no matter the re…

Unless the amounts in question are nominal, the accused infringers will just get crushed by copyright claims.

If you have to put up money to file a counter-notice but you get it back when the content gets restored, you're only out that money for at most 10 business days, and only having to put up money for at most one notice at a time per work you've uploaded. That's probably still a bit unfair to the victims of DMCA abuse, but it's hard to financially crush an accused infringer this way. And if the accused infringer gets part of the accuser's fee when the accuser declines to take the dispute to court, then users have a chance to make money off insincere copyright trolls.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#27

Post by everfree » Tue, Jun 02, 2020, 6:02 PM UTC

ikeboy wrote: post #21

elliekelly wrote: post #18

Earlier quoted context omitted.

That is the question. If the dollar amount is too low then big companies could afford to abuse the process but if the dollar amount is too high it would be difficult for individual content owners to assert their rights. I was thinking $100 to file an initial claim and $50 to file a counter-claim but I really don't know. Or perhaps a mechanism where the cost to file an initial claim goes up to $1000 after a person/ent…

I really like counternotices being free. You shouldn't have to pay for standing up for your rights. I'm open to payments for DMCA notices, but it shouldn't be forfeited just because someone filed a counternotice. I think a better system would involve the escrowed money going to the other party, and allow some sort of small claims court to adjudicate those matters. Although it still feels extraneous. If there's strict…

Notices should also be free by that logic, since by sending one you're also standing up for your rights.

Everyone likes to imagine DMCA senders as large companies and trolls, and it's true that that's a large section of them, but not all.

There are also individuals who have had their blog articles copied, independent photographers who have had their photos used without permission, videographers whose videos have been copied to other YouTube channels.

In some situations DMCA can help the little guy too.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#28

Post by wtallis » Tue, Jun 02, 2020, 6:08 PM UTC

ikeboy wrote: post #25

elliekelly wrote: post #22

Earlier quoted context omitted.

> What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? You would still want the copyright-infringing material removed regardless of their ability to pay. > you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights In the US you are almost always required to automatically pay money in order to asser…

>You would still want the copyright-infringing material removed regardless of their ability to pay. But it might not be cost effective to file a suit. Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged. >In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees. That's if the courts ar…

> Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged.

I don't think it's that reasonable. If the counter-notice is so obviously wrong, then following through with a lawsuit probably stands a good chance of a default judgement in your favor, and a very good chance of a summary judgement in your favor. If every such case was pursued to final judgement or settlement, then we would quickly see this process provide effective deterrent to blatant copyright infringement.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#29

Post by ikeboy » Tue, Jun 02, 2020, 6:10 PM UTC

everfree wrote: post #27

ikeboy wrote: post #21

Earlier quoted context omitted.

I really like counternotices being free. You shouldn't have to pay for standing up for your rights. I'm open to payments for DMCA notices, but it shouldn't be forfeited just because someone filed a counternotice. I think a better system would involve the escrowed money going to the other party, and allow some sort of small claims court to adjudicate those matters. Although it still feels extraneous. If there's strict…

Notices should also be free by that logic, since by sending one you're also standing up for your rights. Everyone likes to imagine DMCA senders as large companies and trolls, and it's true that that's a large section of them, but not all. There are also individuals who have had their blog articles copied, independent photographers who have had their photos used without permission, videographers whose videos have been…

The difference is that copyright is a right that involves making money, while the right to free speech doesn't always involve selling things. The sender of a notice is benefiting off of copyright in some way, while the alleged infringer might not be benefiting financially, and therefore it's more important to allow them to defend their rights freely.

Re: Internet Users of All Kinds Should Be Concerned by a New Copyright Office Report

#30

Post by ikeboy » Tue, Jun 02, 2020, 6:17 PM UTC

wtallis wrote: post #28

ikeboy wrote: post #25

Earlier quoted context omitted.

>You would still want the copyright-infringing material removed regardless of their ability to pay. But it might not be cost effective to file a suit. Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged. >In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees. That's if the courts ar…

> Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged. I don't think it's that reasonable. If the counter-notice is so obviously wrong, then following through with a lawsuit probably stands a good chance of a default judgement in your favor, and a very good chance of a summary judgement in your favor. If every such case was pursued to final judgement or settlement, the…

The problem is the other side is often judgement proof. And you might not know who the other side until you get a counter-notice with their contact information.