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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

#41

Post by ikeboy »

wtallis wrote: post #38
ikeboy wrote: post #36

Earlier quoted context omitted.

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 obvi…

The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit.

Regardless, filing a suit costs more money than they were proposing be put up in escrow. So at best it would be a weak incentive.

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

#42

Post by wtallis »

ikeboy wrote: post #41
wtallis wrote: post #38

Earlier quoted context omitted.

> 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 obvi…

The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. Regardless, filing a suit costs more money than they were proposing be put up in escrow. So at best it would be a weak incentive.

> The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit.

... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost.

> Regardless, filing a suit costs more money than they were proposing be put up in escrow.

What are you basing this on? The comment you're referring to very deliberately did not use specific numbers.

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

#43

Post by wtallis »

austincheney wrote: post #17
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…

How would that be enforceable on parties outside the US?

Anyone filing a DMCA counter-notice from outside the US agrees to submit to the jurisdiction of a US federal court, or else the counter-notice is invalid.

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

#44

Post by ikeboy »

wtallis wrote: post #42
ikeboy wrote: post #41

Earlier quoted context omitted.

The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. Regardless, filing a suit costs more money than they were proposing be put up in escrow. So at best it would be a weak incentive.

> The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. ... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. > Regardless, filing a suit costs more money than they were proposing be put up in escrow. What are you basing this on? The commen…

>... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost.

This wasn't specified in the original post. They said the money gets forfeited to LOC, not recoverable.

>What are you basing this on? The comment you're referring to very deliberately did not use specific numbers.

In response to questions, they gave the figure of $100.

If the number has to be high enough to be a significant incentive to file suit, then it would also be too high for use as the DMCA intended. People would just file lawsuits instead of sending notices at all.

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

#45

Post by mr_spothawk »

elliekelly wrote: post #37
Supermancho wrote: post #32

Earlier quoted context omitted.

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.

> It doesn't need to be a law passed by Congress.

Then why should I (or anybody) be expected to follow it?

And before you say "modern regulations" I'll point out that my position generally is that regulations instead of law are how we've gotten so deranged in the first place.

Also, the money is fucked.

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

#47

Post by wtallis »

ikeboy wrote: post #44
wtallis wrote: post #42

Earlier quoted context omitted.

> The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. ... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. > Regardless, filing a suit costs more money than they were proposing be put up in escrow. What are you basing this on? The commen…

>... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. This wasn't specified in the original post. They said the money gets forfeited to LOC, not recoverable. >What are you basing this on? The comment you're referring to very deliberately did not use specific numbers. In response to questions, they gave the f…

> They said the money gets forfeited to LOC, not recoverable.

That was not explicitly stated, and the more reasonable interpretation is that the money would be considered as part of the legal fees for the action culminating in the lawsuit, and would therefore be eligible for recovery absent specific legal provisions excluding that possibility.

> People would just file lawsuits instead of sending notices at all.

The DMCA notice procedure would continue to serve the original purpose of serving as an expedited way to get infringing content removed, thereby limiting the damage done while waiting for room on the court's docket. And in cases where the infringer knows they're guilty and doesn't want to contest the takedown, a court would still not have to get involved (except perhaps for being part of the escrow system, but that doesn't waste the judge's time).

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

#48

Post by NotACop182 »

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…

The problem is Company A has deep pockets person B doesn’t. If the amount is too small to file DMCA it wont change a thing. If it’s too high person B won’t be able to fight or put money in escrow. Sounds great and all but I don’t see a working solution to what I stated above.

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

#49

Post by Mindwipe »

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…

> 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.

Lol, no it doesn't. Even launching such litigation costs tens of thousands of dollars per time, and many copyright owners have to file literally millions of requests a day, the vast, vast, vast majority of which are legitimate.

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

#50

Post by Mindwipe »

ikeboy wrote: post #29
everfree wrote: post #27

Earlier quoted context omitted.

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.

> The difference is that copyright is a right that involves making money

No it isn't. That's one reason, but international copyright treaties recognise a host of rights that copyright gives including the right to attribution, the right to maintain the integrity of the work, and the right to control distribution (including the notion that you can just say you'd quite like it not to be distributed thanks).

Copyright is a speech right, not just an economic one.

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