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

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

#31

Post by ac29 »

Buttons840 wrote: post #13
ikeboy wrote: post #10

Earlier quoted context omitted.

In what circumstances would escrowed money be forfeited? If the escrowed money doesn't go to the parties, then there's no incentive from either side to consider the other side's escrow when determining their actions. Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I think you need a lot more details on what happens in each scenario here.

The circumstances where the escrow IS NOT returned would be the forfeitures. You have to read between the lines since the comment only specifies when escrow IS returned. So, alleged copyright owner loses escrow when a counter claim is filed. The accused loses escrow when a lawsuit is filed. This detail isn't as important as the overall result. Those who engage in mass DMCA abuse will directly lose money as a result.

> The accused loses escrow when a lawsuit is filed.

So all the alleged copyright owner needs to do to deprive the accused of $Y is file a lawsuit (which could be completely lacking in merit)? That is arguably worse than the status quo, unless $Y is trivially small, in which case it lacks meaning to begin with.

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

#32

Post by Supermancho »

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…

That's complicated. This isn't what lawmakers are interested in passing. Broad "get it done however" motions is how modern laws are written, with some very notable exceptions due to lobbying.

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

#33

Post by wtallis »

ikeboy wrote: post #30
wtallis wrote: post #28

Earlier quoted context omitted.

> 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.

"Judgement proof" usually just means the plaintiff/copyright holder cannot make money off the defendant/infringer. But the infringer is still going to suffer financially. Having an expectation that you'll be driven into bankruptcy if you file a false counter-notice would probably serve as extremely effective deterrent against doing so, especially when it costs real money to file that false counter-notice.

Judgement-proof infringers may be a serious problem under the current system, but I think that problem would be more or less eliminated by requiring participants in the DMCA takedown procedures to have skin in the game.

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

#34

Post by dpbriggs »

wtallis wrote: post #26
zchrykng wrote: post #24

Earlier quoted context omitted.

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 pa…

If the amount is large small creators will be crushed under this system, unable to afford the deposit.

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

#35

Post by jcranmer »

ikeboy wrote: post #6

https://www.judiciary.senate.gov/meetings/is-the-dmcas-notic... There's a hearing going on in the Senate today in two hours (linked in the article), if anyone wants to watch the livestream.

The hearing just started.

Tiller's opening remarks do not leave me with much hope. It's basically "copyright owners are suffering!" and there's no reference to DMCA abuse...

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

#36

Post by ikeboy »

wtallis wrote: post #33
ikeboy wrote: post #30

Earlier quoted context omitted.

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.

"Judgement proof" usually just means the plaintiff/copyright holder cannot make money off the defendant/infringer. But the infringer is still going to suffer financially. Having an expectation that you'll be driven into bankruptcy if you file a false counter-notice would probably serve as extremely effective deterrent against doing so, especially when it costs real money to file that false counter-notice. Judgement-p…

Why would there be such an expectation? What incentive would a copyright holder have to sue that they don't have under the current system?

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

#37

Post by elliekelly »

Supermancho wrote: post #32
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…

That's complicated. This isn't what lawmakers are interested in passing. Broad "get it done however" motions is how modern laws are written, with some very notable exceptions due to lobbying.

It doesn't need to be a law passed by Congress. Congress need only pass a law authorizing the USPTO (or FTC, or FCC, or whoever) to promulgate a system that facilitates DMCA compliance while disincentivizing its abuse. Then the USPTO would set the rules and parameters and oversee compliance.

That's how most modern regulations are written.

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

#38

Post by wtallis »

ikeboy wrote: post #36
wtallis wrote: post #33

Earlier quoted context omitted.

"Judgement proof" usually just means the plaintiff/copyright holder cannot make money off the defendant/infringer. But the infringer is still going to suffer financially. Having an expectation that you'll be driven into bankruptcy if you file a false counter-notice would probably serve as extremely effective deterrent against doing so, especially when it costs real money to file that false counter-notice. Judgement-p…

Why would there be such an expectation? What incentive would a copyright holder have to sue that they don't have under the current system?

> What incentive would a copyright holder have to sue that they don't have under the current system?

Right now, a copyright holder who sends a half-assed takedown notice has no incentive to put their money where their mouth is. Bur if they have to make a financial investment in order to file that notice and their money is forfeit if they don't follow through with a lawsuit when the notice is contested, then they obviously now have an incentive to follow through with a lawsuit. Especially if dropping their allegations of infringement now means the intended victim of the half-assed takedown notice gets part of that filing fee to compensate them for their troubles and having their work temporarily made unavailable.

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

#39

Post by wtallis »

ac29 wrote: post #31
Buttons840 wrote: post #13

Earlier quoted context omitted.

The circumstances where the escrow IS NOT returned would be the forfeitures. You have to read between the lines since the comment only specifies when escrow IS returned. So, alleged copyright owner loses escrow when a counter claim is filed. The accused loses escrow when a lawsuit is filed. This detail isn't as important as the overall result. Those who engage in mass DMCA abuse will directly lose money as a result.

> The accused loses escrow when a lawsuit is filed. So all the alleged copyright owner needs to do to deprive the accused of $Y is file a lawsuit (which could be completely lacking in merit)? That is arguably worse than the status quo, unless $Y is trivially small, in which case it lacks meaning to begin with.

If the plaintiff's case lacks merit, the defendant will get $Y back when the plaintiff loses, plus other fees, and the plaintiff who wasted everyone's time pays all of those costs and potentially punitive damages or sanctions if it was a really egregious abuse of the takedown process.

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

#40

Post by wtallis »

dpbriggs wrote: post #34
wtallis wrote: post #26

Earlier quoted context omitted.

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 pa…

If the amount is large small creators will be crushed under this system, unable to afford the deposit.

Did you mean to post this elsewhere? My comment and the one above it were specifically about the targets of takedown notices, not senders.
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