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In this case, Casio is unlikely to file a frivolous lawsuit, so the content will go back up. The only disadvantage is if the rights owner is willing to file a

by ikeboy 6y ago

In this case, Casio is unlikely to file a frivolous lawsuit, so the content will go back up. The only disadvantage is if the rights owner is willing to file a frivolous lawsuit, and in that scenario their lawyers can get sanctioned by the court. Look at e.g. Richard Leibowitz for an aggressive copyright attorney who's been sanctioned by various courts.

elliekelly 6y ago
I don’t know much about the intricacies of the DMCA process but my understanding is that the counter-notice will put the content back up unless the original filer (in this case, Casio) provides proof they’ve filed suit. Is there anything stopping Casio from sending a strongly worded letter of their intent to file suit if the content isn’t removed? Is there anything stopping Casio from bringing suit, submitting the docket number to Github to have the content removed, and then withdrawing after 30 (or 60 or 90) days? Somewhat related, are there any transparency sites that track DMCA notices for which a counter-notice was filed and no suit was ever brought? To give the public an idea of which companies are most aggressively using takedown notices even where they might not feel they have much of a case.
- ikeboy 6y ago
  1. It's unethical to threaten to sue without an actual intention of suing - lawyers can be disciplined for that. 2. Once you sue, you can't dismiss unilaterally once the other side has responded. They can reasonably say "we put money into fighting this - you can't withdraw unless you do it with prejudice, which means you can't bring the same suit again." If there's a dismissal of any kind, that could be submitted to GitHub and they'd be permitted to reinstate the content, unless the court specifically said otherwise. The statute doesn't explicitly say this, but it talks about a lawsuit being filed to restrain infringement - it's obvious that if such a lawsuit is dismissed then that provision is no longer satisfied. I'm satisfied any judge looking at this would agree with my interpretation.
loeg 6y ago
Responding only to this part: > The only disadvantage is if the rights owner is willing to file a frivolous lawsuit, and in that scenario their lawyers can get sanctioned by the court. It's difficult in many jurisdictions for a defendant to actually get even their lawyers' fees covered by a frivolous litigant, much less sanctions for the litigant and/or their lawyers. Especially if, as the initiating party, they pick a friendly jurisdiction without anti-SLAPP laws.
- ikeboy 6y ago
  I'm not quite sure about that framing. Every jurisdiction reserves the right to sanction attorneys for frivolous cases. The framing I'd prefer is that there are meritless cases that don't quite rise to the level of frivolous; the legal terminology here is "a good faith extension of existing law." I think the legal system properly doesn't penalize such cases. If a case isn't sanctionable, we need to accept the consequences as a trade-off for allowing everyone access to the courts. That being said, I support stronger anti-slapp laws - and I say this as someone who's faced a meritless and possibly frivolous anti-SLAPP motion myself (discussed in other recent HN threads). Personally, the anti-slapp laws have only hurt me, and I still support their expansion.
  - loeg 6y ago
    They reserve the right to sanction, but it rarely happens, even for repeated infringers. And I disagree with your framing. There are plenty of truly frivolous cases brought to harass or compel poorer entities, and it mostly works (maybe less well against speech in jurisdictions with anti-SLAPP).
    - ikeboy 6y ago
      I feel uncomfortable with an alternative world where it's significantly easier to sanction attorneys. I suspect many legitimate cases would not end up being brought, and legal costs would go up. There's a trade-off to be made.

by ikeboy 6y ago

elliekelly 6y ago

I don’t know much about the intricacies of the DMCA process but my understanding is that the counter-notice will put the content back up unless the original filer (in this case, Casio) provides proof they’ve filed suit. Is there anything stopping Casio from sending a strongly worded letter of their intent to file suit if the content isn’t removed? Is there anything stopping Casio from bringing suit, submitting the docket number to Github to have the content removed, and then withdrawing after 30 (or 60 or 90) days? Somewhat related, are there any transparency sites that track DMCA notices for which a counter-notice was filed and no suit was ever brought? To give the public an idea of which companies are most aggressively using takedown notices even where they might not feel they have much of a case.

ikeboy 6y ago
1. It's unethical to threaten to sue without an actual intention of suing - lawyers can be disciplined for that. 2. Once you sue, you can't dismiss unilaterally once the other side has responded. They can reasonably say "we put money into fighting this - you can't withdraw unless you do it with prejudice, which means you can't bring the same suit again." If there's a dismissal of any kind, that could be submitted to GitHub and they'd be permitted to reinstate the content, unless the court specifically said otherwise. The statute doesn't explicitly say this, but it talks about a lawsuit being filed to restrain infringement - it's obvious that if such a lawsuit is dismissed then that provision is no longer satisfied. I'm satisfied any judge looking at this would agree with my interpretation.

loeg 6y ago

Responding only to this part: > The only disadvantage is if the rights owner is willing to file a frivolous lawsuit, and in that scenario their lawyers can get sanctioned by the court. It's difficult in many jurisdictions for a defendant to actually get even their lawyers' fees covered by a frivolous litigant, much less sanctions for the litigant and/or their lawyers. Especially if, as the initiating party, they pick a friendly jurisdiction without anti-SLAPP laws.

ikeboy 6y ago
I'm not quite sure about that framing. Every jurisdiction reserves the right to sanction attorneys for frivolous cases. The framing I'd prefer is that there are meritless cases that don't quite rise to the level of frivolous; the legal terminology here is "a good faith extension of existing law." I think the legal system properly doesn't penalize such cases. If a case isn't sanctionable, we need to accept the consequences as a trade-off for allowing everyone access to the courts. That being said, I support stronger anti-slapp laws - and I say this as someone who's faced a meritless and possibly frivolous anti-SLAPP motion myself (discussed in other recent HN threads). Personally, the anti-slapp laws have only hurt me, and I still support their expansion.
- loeg 6y ago
  They reserve the right to sanction, but it rarely happens, even for repeated infringers. And I disagree with your framing. There are plenty of truly frivolous cases brought to harass or compel poorer entities, and it mostly works (maybe less well against speech in jurisdictions with anti-SLAPP).
  - ikeboy 6y ago
    I feel uncomfortable with an alternative world where it's significantly easier to sanction attorneys. I suspect many legitimate cases would not end up being brought, and legal costs would go up. There's a trade-off to be made.