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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...
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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…
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> 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…
The US has a doctrine of first sale which says there is no right to control distribution. There's a right to control copying, that's it.
Leaving aside the long running issue that despite some people's claims here that US copyright law is evil and run by megacorps while the reality is that the US is in breach of many of it's treaty commitments on copyright (and has been for a long time), the doctrine of first sale absolutely does not say that there is no right to control distribution.
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The US has a doctrine of first sale which says there is no right to control distribution. There's a right to control copying, that's it.
> The US has a doctrine of first sale which says there is no right to control distribution. There's a right to control copying, that's it. Leaving aside the long running issue that despite some people's claims here that US copyright law is evil and run by megacorps while the reality is that the US is in breach of many of it's treaty commitments on copyright (and has been for a long time), the doctrine of first sale a…
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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...
That's because DMCA abuse is broadly a myth.
> So with Kindle Direct publishing, authors routinely try to climb to the top spot in their category or the top of their browse note, as Amazon would call it, by issuing bogus notices against higher ranking titles. And this for us actually accounts for more than half of the takedown notices that we receive.
https://www.copyright.gov/policy/section512/public-roundtabl...
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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.
No money changing hands, but the artist still has the legal right to remove the copy and/or be properly attributed.
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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.
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…
Accused should always get their funds back plus half of the alleged's fees if a lawsuit isn't filed, but they're sent back to the contact information set in the counter-notice-- so they are incentivized to make that information accurate.
$X should also be substantial, at least equivalent to the cost of bringing a lawsuit.
$Y should be nominal, just to discourage providing false information.
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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 was not specified in the Constitution that the Congress shall delegate the finer details of lawmaking to the Executive Branch in the form of Administrative Law. It said that legislative power is wielded specifically by the Congress. Given that judicial review takes as an input the intent Oof the Congress, it seems daft to leave the intent to question by not having the details worked out by the legislature.
This has the practical upshot in disincentivizing unnecessary or frivolous lawmaking to boot. If instead of spending time trying to jam in notionary laws into an omnibus bill somewhere, a legislator had to come to terms with the how, not just the what, I'd wager we'd over time start to see a far morecohesive legal landscape begin to take shape.
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> 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…
No copyright owner is capable of filing millions of valid DMCA takedown requests per day. Anyone attempting to do so is flouting the requirements of the DMCA takedown procedure and committing perjury with every notice sent where a real human has not personally viewed the allegedly infringing material and come away with a good-faith belief that it does indeed constitute infringement of the work identified in the notice.