> Tech changes rapidly, and legislation quite simply isn't going to be able to encode a specific contextual mutating standard. Law isn't wrong to offload that analysis to an institution that is in the thick of it, with access to expert testimony and amicus information to inform it. You WANT the EFF and other advocates being able to weigh in on how the balancing factors should work and you want the courts to listen.
That is separate from the problem that the "new law" created by the court is being imposed ex post facto on actions you've already taken.
It means you don't know what the law actually is yet when you're trying to comply with it. That kind of uncertainty leads people to make overly conservative choices that make beneficial projects uneconomical, or just causes them to give up because it's not worth investing years of your life in something you don't know the courts won't unexpectedly blow apart.
And if you want someone to take input from the EFF et al then why should we wait until it's already in court instead of doing that in the legislature before passing a bad law to begin with?
> Yes, and then 95% of those go back down to pre-spike levels of interest.
But the fact that they did have a million users for twelve months may get them hauled into court.
> If they's the odd exception which has a massive sustained uptick for their service which promoted copyright protected works, now they can think about licensing and formalizing their processes to protect all stakeholders now that they're a success.
Again, you're assuming that success comes with popularity. If you're losing money on every user you can't make it up on volume.
There are projects operated by individuals with a large number of users that operate at a net loss. If you say to those people that they have to implement Content ID because they have too many users, those projects are dead.
And the projects that actually are successful would have high revenue, so the only projects ensnared by a user count limit but not a revenue limit are the ones that are barely making it as it is.
> Courts do not afford less due process to larger penalties. The cost is in the complexity; who owns the rights, what did they know about their claim, how easy was the mistake to make, etc. Proving this to a court that has no starting knowledge of what's going on requires money to compile information, prepare briefs, etc.
Yes, exactly, so if that process is used then the penalty would need to be sufficient to justify the victim in going through that process.
But now let me ask you this. How is it that we're willing to impose a prior restraint without going through that process but not a penalty for false claims?