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See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. If all harms are efficiently deterred and compe

by ikeboy 6y ago

See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. If all harms are efficiently deterred and compensated, it's only our base animal instincts that suggest there's something more that needs to happen. Civilisation, of which the legal system is a subset, is there precisely to tame our baser instincts. Just to head off a foreseen objection: the correct amount of deterrence isn't to prevent a harm from ever happening (trivial, just bankrupt everyone who does any harm), but to provide a negative incentive on the perpetrator equal to the harm they will cause by doing some act. If the chances of someone being caught are low, then it's proper to multiply the eventual fine by the inverse of the probability, which creates the required incentive. If someone showed malice, then that's evidence that the incentives were insufficient, and a reason to increase the fine. But none of that, from a legal theory perspective, is to punish them or bring fairness - it's to create the appropriate economic incentives. Read up on https://en.wikipedia.org/wiki/Efficient_breach https://en.wikipedia.org/wiki/Efficient_breach for an example of this kind of thinking.

pulisse 6y ago
> See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. Punitive damages are a longstanding feature of civil law.
- ikeboy 6y ago
  And if you'd read the rest of my comment, you'll notice two different rationales behind punitive damages that have nothing to do with teaching lessons. It's all about deterrence.
  - Jordrok 6y ago
    I don't see the distinction. The "lesson" to be taught is that large entities should not use the legal system as a bludgeon to suppress smaller entities - i.e. to deter this kind of behavior. This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient?
    - ikeboy 6y ago
      >This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient? Not necessarily. With copyright law there's practically no penalty, and I think that should be changed as I said elsewhere in the thread. But the optimal penalty level should be the amount of damages, plus some amount of punitive to account for the probability of a case getting that far, if it's low. If a big company decides that it's worth paying that amount in expectation in a standard tort case, then it is, in fact, efficient to allow that to happen and to have them compensate the other side in the instances where it does happen. At least when we're talking civilly and not criminally, where different concerns apply.
    - TheOtherHobbes 6y ago
      It's classic antitrust. Google considers itself immune. A class action on behalf of content creators who are being abused combined with federal antitrust action might persuade it otherwise - especially if actions were brought simultaneously in the US and EU.
      - ikeboy 6y ago
        How would this be antitrust on the platform's part? How do they gain market share? Someone tried suing Amazon over basically this theory and failed, same lawyer that I'm using in an antitrust case against tp-link for false infringement notices to Amazon. See https://www.courtlistener.com/docket/6169804/mordys-appliance-repair-service-llc-v-amazon-services-llc/ https://www.courtlistener.com/docket/6169804/mordys-applianc... And https://www.courtlistener.com/docket/16562550/thimes-solutions-inc-v-tp-link-usa-corporation/ https://www.courtlistener.com/docket/16562550/thimes-solutio... for my tp-link case, I've mentioned it on HN several times. I have a list of similar cases, some of them use antitrust theories, but it's almost always against the brand/rights owner and not against the platform.
dublin 6y ago
And maybe this is one of the best reasons why we need to reign in ridiculous copyright laws. First of all, by going back to reasonable terms. In today's world, that should be probably no more than the length of patent terms - about 20 years. (And patent terms should be much shorter, especially in categories where there are a lot of patent applications.) Also, platforms falsely pulling someone's non-infringing works on grounds of false copyright claims (even if provided by the "owner") should be liable for fraud-like (treble) damages. This will make sure nothing gets banished/silienced/deplatformed unless it is a well-proven copyright violation.
- ikeboy 6y ago
  You're proposing creating an affirmative obligation on private parties to carry products or content they have no contractual obligation to. Why? What's the compelling reason we should allow YouTube to delete videos they don't like, but not allow them to delete videos that received a copyright complaint? Personally I think the liability should be on the party submitting the complaint, not the platform. As long as the platform is permitted to reinstate the content after an appeal (which is what the DMCA counternotice safe harbor is about), that's enough. The DMCA framework works well [0], and I would like if it was extended to patents and trademark/counterfeit accusations as well. [0] with the caveat that the standard for liability for false claims should be lowered, and they should be treated as per se antitrust violations.
  - TheOtherHobbes 6y ago
    The platform knows perfectly well what it's doing. Google has been trying to hide behind the "Oh dear our algorithm is experimental and fallible and sometimes it gets things wrong and that's very sad" defence, and it's obviously nonsense. You don't even need explicit evidence of collusion to understand why. The "failure" of the algorithm has been happening for years now, and Google appears to have made no effort to correct the failure. But the real tell is that these "failures" disproportionately benefit large corporations which Google will have some relationship with - as opposed to small content creators who are disposable. Ultimately, these actions are not mandated by law. So what's the legal - never mind moral - justification for them?

by ikeboy 6y ago

pulisse 6y ago

> See, I get scared when people want to use the courts to "teach a lesson." That's not what they're intended for. Punitive damages are a longstanding feature of civil law.

ikeboy 6y ago
And if you'd read the rest of my comment, you'll notice two different rationales behind punitive damages that have nothing to do with teaching lessons. It's all about deterrence.
- Jordrok 6y ago
  I don't see the distinction. The "lesson" to be taught is that large entities should not use the legal system as a bludgeon to suppress smaller entities - i.e. to deter this kind of behavior. This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient?
  - ikeboy 6y ago
    >This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient? Not necessarily. With copyright law there's practically no penalty, and I think that should be changed as I said elsewhere in the thread. But the optimal penalty level should be the amount of damages, plus some amount of punitive to account for the probability of a case getting that far, if it's low. If a big company decides that it's worth paying that amount in expectation in a standard tort case, then it is, in fact, efficient to allow that to happen and to have them compensate the other side in the instances where it does happen. At least when we're talking civilly and not criminally, where different concerns apply.
  - TheOtherHobbes 6y ago
    It's classic antitrust. Google considers itself immune. A class action on behalf of content creators who are being abused combined with federal antitrust action might persuade it otherwise - especially if actions were brought simultaneously in the US and EU.
    - ikeboy 6y ago
      How would this be antitrust on the platform's part? How do they gain market share? Someone tried suing Amazon over basically this theory and failed, same lawyer that I'm using in an antitrust case against tp-link for false infringement notices to Amazon. See https://www.courtlistener.com/docket/6169804/mordys-appliance-repair-service-llc-v-amazon-services-llc/ https://www.courtlistener.com/docket/6169804/mordys-applianc... And https://www.courtlistener.com/docket/16562550/thimes-solutions-inc-v-tp-link-usa-corporation/ https://www.courtlistener.com/docket/16562550/thimes-solutio... for my tp-link case, I've mentioned it on HN several times. I have a list of similar cases, some of them use antitrust theories, but it's almost always against the brand/rights owner and not against the platform.

dublin 6y ago

And maybe this is one of the best reasons why we need to reign in ridiculous copyright laws. First of all, by going back to reasonable terms. In today's world, that should be probably no more than the length of patent terms - about 20 years. (And patent terms should be much shorter, especially in categories where there are a lot of patent applications.) Also, platforms falsely pulling someone's non-infringing works on grounds of false copyright claims (even if provided by the "owner") should be liable for fraud-like (treble) damages. This will make sure nothing gets banished/silienced/deplatformed unless it is a well-proven copyright violation.

ikeboy 6y ago
You're proposing creating an affirmative obligation on private parties to carry products or content they have no contractual obligation to. Why? What's the compelling reason we should allow YouTube to delete videos they don't like, but not allow them to delete videos that received a copyright complaint? Personally I think the liability should be on the party submitting the complaint, not the platform. As long as the platform is permitted to reinstate the content after an appeal (which is what the DMCA counternotice safe harbor is about), that's enough. The DMCA framework works well [0], and I would like if it was extended to patents and trademark/counterfeit accusations as well. [0] with the caveat that the standard for liability for false claims should be lowered, and they should be treated as per se antitrust violations.
- TheOtherHobbes 6y ago
  The platform knows perfectly well what it's doing. Google has been trying to hide behind the "Oh dear our algorithm is experimental and fallible and sometimes it gets things wrong and that's very sad" defence, and it's obviously nonsense. You don't even need explicit evidence of collusion to understand why. The "failure" of the algorithm has been happening for years now, and Google appears to have made no effort to correct the failure. But the real tell is that these "failures" disproportionately benefit large corporations which Google will have some relationship with - as opposed to small content creators who are disposable. Ultimately, these actions are not mandated by law. So what's the legal - never mind moral - justification for them?