5 ms·

>The problem is the proportionality requirements are poorly designed. I don't think this is the issue. The requirements aren't set out in detail, and will larg

• AnthonyMouse 8y ago
  > The requirements aren't set out in detail, and will largely be fleshed out by the courts. This is where the reality of Art. 13 will be set - in the rulings which follow. But that's part of the problem. It means a service you operate today is subject to a law that will be decided on tomorrow. So you either make the conservative choice, which is onerously expensive and may put you out of business immediately, or you risk being the case of first impression where the more cost effective choice you made is decided to be insufficient, and that too puts you out of business -- but only after you've dedicated years of your life to it. > Also, elements in a test don't react linearly in court judgements. Scaling from 100 users to 200 isn't going to suddenly mean that it's proportional for you to implement Content ID from scratch or that an applicable fine doubles. Users don't scale linearly either. Things have network effects. Side projects get posted to HN or similar and go from hundreds of users to hundreds of thousands in the course of an afternoon. And again, just because you have a lot of users doesn't mean you make a lot of money. Your project may have had a million users for a decade, but if the revenue from those users is only just covering your hosting costs as it is, now you're out of business. > I think most people can agree that the cut and dry abuse of copyright and copyright-adjacent systems should be penalized. But it is. Just not at the scale of individual content producers. If someone tried to extort you by placing false copystrikes on your work and you had proof, you would have a few torts or more general omnibus civil code provisions to use in most jurisdictions. But the cost and hassle of doing so might be higher than your expected return. Which means that it isn't, because then nobody does that and there is no penalty for continuing to do it in practice. And the solution to that is quite straight forward -- make the penalty for a false claim sufficiently large, and the process for having it enforced sufficiently simple, that it justifies the victim in spending that amount of time to enforce the penalty. Moreover, even the existing penalties are quite useless because the biggest problem isn't overtly fraudulent claims, it's the extremely high volume of false positives the claimants have no real incentive to reduce.
  • ABCLAW 8y ago
    >But that's part of the problem. No, it isn't. 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. >Side projects get posted to HN or similar and go from hundreds of users to hundreds of thousands in the course of an afternoon. Yes, and then 95% of those go back down to pre-spike levels of interest. 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. Just because Napster was once small doesn't mean their business model was going to be exempt from attention forever. > And the solution to that is quite straight forward -- make the penalty for a false claim sufficiently large, and the process for having it enforced sufficiently simple, that it justifies the victim in spending that amount of time to enforce the penalty. That's not simple. 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. We like to believe there's no Kolgomorov complexity associated with getting justice, but getting justice requires translating reality into consensus at some level of fidelity. That process is EXPENSIVE. >the biggest problem isn't overtly fraudulent claims, it's the extremely high volume of false positives the claimants have no real incentive to reduce Maybe on Youtube that's the case, but that's more of an issue with us having a system of private algorithmic arbitration, which is a seperate issue. The courts are too expensive to follow up on individual claims, and the only alternative is for content holders to sue youtube for big $$$ through content collectives (the threat of which is why we are where we are).
    • AnthonyMouse 8y ago
      > 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?
• Natanael_L 8y ago
  Getting dragged through courts is going to kill numerous startups regardless of how legally right they are, because the investors will drop them and they'll go bankrupt.