9 ms·

1. There's no reason to prohibit agent relationships, as long as liability attaches to the rights owner. 2. Strict liability is a good idea, but the exact amou

by ikeboy 6y ago

1. There's no reason to prohibit agent relationships, as long as liability attaches to the rights owner. 2. Strict liability is a good idea, but the exact amount should be up to discretion of the court. Some cases are more egregious than others. 3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones. And the penalty is too harsh. Instead, they should be required to actually sue to enforce their copyright, instead of filing complaints.

bargl 6y ago
3. That's a great idea and something similar could be used on youtube videos and demonitization / takedowns.
ikeboy 6y ago
I also think once these fixes are implemented, that the same should apply to trademark and patent infringement notices. Those also see widespread abuse, it's just not as prominent because the targets are small businesses.
- _jal 6y ago
  How does that work? As far as I'm aware, there is nothing in the law that looks even vaguely like the DMCA notice-and-takedown regime for patents or trademarks. I do agree with you that there are a number of abusive legal games used to farm small businesses.
  - ikeboy 6y ago
    There's nothing in the law currently, correct. I believe a law similar to DMCA, but with some more protections as above, should be passed applying to accusations of patent and trademark infringement.
cortesoft 6y ago
Yeah, #3 sounds like an invitation for abuse... keep submitting work designed to trick rights holders into submitting claims until you get three. If you have infinite chances, you will eventually get them to strike 3 invalid claims.
- ikeboy 6y ago
  I wrote https://medium.com/@corporatebullies/why-the-shop-safe-act-is-a-mistake-and-how-to-fix-it-f7149963e0d https://medium.com/@corporatebullies/why-the-shop-safe-act-i... in part to point out a related issue in regards to a proposed bill. Rigid three strikes laws are almost never appropriate.
- tehwebguy 6y ago
  Can rights holders be tricked into committing perjury? Seems like they‘d have to do this on their own with no prompt from anyone else.
  - tspiteri 6y ago
    They can be made to be convicted of perjury. If you have enough trials, you're going to be falsely convicted a few times.
    - tehwebguy 6y ago
      Sure but not at all what we are talking about here
  - cortesoft 6y ago
    Upload thousands of infringing videos of their content, and then start mixing in slight variations, and then content that appears to be infringing, but isn’t. If you post enough copyrighted things, eventually they will accidentally request a non-violating thing be taken down.
  - cortesoft 6y ago
    > Can rights holders be tricked into committing perjury? If I could interrogate your as long as I wanted, I am sure I could get you to perjure yourself three times. Keep asking slightly varied questions until I get you to answer similar questions two different ways.
pdonis 6y ago
> There's no reason to prohibit agent relationships But the relationship between Casio and YouTube in this instance is not an agent relationship. Casio isn't hiring YouTube to handle a complaint for them. They're just using the DMCA to bully YouTube into taking down the video. YouTube is not Casio's agent. What should happen is that Casio should have to file a lawsuit directly against the person who posted the video on YouTube; if it prevails in such a lawsuit, the court could then order YouTube to take down the video as part of its judgment. But unless and until that happens, YouTube would simply not be involved at all.
- ikeboy 6y ago
  You're just saying that the DMCA notice system should be abolished. But the system was established for a compelling purpose. Firstly, it provides a safe harbor to YouTube - nobody can sue YouTube for hosting infringing content if they comply with the DMCA. This is good. In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order, and this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content, and force the rights owner to sue for every piece of content.
  - pdonis 6y ago
    > You're just saying that the DMCA notice system should be abolished. I think the entire DMCA should be abolished. > it provides a safe harbor to YouTube Why should YouTube have a safe harbor over and above making users who post content provide an affirmation, valid in a court of law, that they are the rightful owners of the content? Any prudent provider of hosting for content to random people on the Internet would do this. If the answer is that YouTube couldn't possibly do this for all of the millions of people who want to post content, how is that anything but YouTube's problem? Why should a draconian law be put in place simply to allow them to avoid having to do proper due diligence? Or to allow companies like Casio who want to bully people to be able to skip having to actually file a lawsuit? > In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order No, we'd have to say that, once YouTube shows the court the legally valid affirmation it got from the user, such a suit would be dismissed. Which means, in practice, that when YouTube's lawyers sent the lawyers for whoever was complaining (Casio in this case) a copy of that legally valid affirmation, Casio's lawyers would tell Casio that they had no chance of winning a lawsuit and they should drop it. And if Casio tried to sue regardless, any reasonable judge would dismiss the suit and tell Casio to stop wasting the court's time (if the judge didn't decide to slap a fine on them for a frivolous lawsuit). > this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content Which would then bring the obvious next question: how did you confirm that the someone else was the rightful owner of all the content? And the answer "we didn't" would mean the infringing website owner would lose the lawsuit.
the8472 6y ago
> 3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones. Perverse incentive: Pad your notice ratio by hiring infringers-as-a-service combined with immediate takedown. The requirement to reimburse costs and time for false takedown is a much better approach because it also punishes drawing out the process. The longer it takes the more costly it gets.
- ikeboy 6y ago
  You already need to pay costs for false notices under 512(f). It's just hard to enforce.

by ikeboy 6y ago

bargl 6y ago

3. That's a great idea and something similar could be used on youtube videos and demonitization / takedowns.

ikeboy 6y ago

I also think once these fixes are implemented, that the same should apply to trademark and patent infringement notices. Those also see widespread abuse, it's just not as prominent because the targets are small businesses.

_jal 6y ago
How does that work? As far as I'm aware, there is nothing in the law that looks even vaguely like the DMCA notice-and-takedown regime for patents or trademarks. I do agree with you that there are a number of abusive legal games used to farm small businesses.
- ikeboy 6y ago
  There's nothing in the law currently, correct. I believe a law similar to DMCA, but with some more protections as above, should be passed applying to accusations of patent and trademark infringement.

cortesoft 6y ago

Yeah, #3 sounds like an invitation for abuse... keep submitting work designed to trick rights holders into submitting claims until you get three. If you have infinite chances, you will eventually get them to strike 3 invalid claims.

ikeboy 6y ago
I wrote https://medium.com/@corporatebullies/why-the-shop-safe-act-is-a-mistake-and-how-to-fix-it-f7149963e0d https://medium.com/@corporatebullies/why-the-shop-safe-act-i... in part to point out a related issue in regards to a proposed bill. Rigid three strikes laws are almost never appropriate.
tehwebguy 6y ago
Can rights holders be tricked into committing perjury? Seems like they‘d have to do this on their own with no prompt from anyone else.
- tspiteri 6y ago
  They can be made to be convicted of perjury. If you have enough trials, you're going to be falsely convicted a few times.
  - tehwebguy 6y ago
    Sure but not at all what we are talking about here
- cortesoft 6y ago
  Upload thousands of infringing videos of their content, and then start mixing in slight variations, and then content that appears to be infringing, but isn’t. If you post enough copyrighted things, eventually they will accidentally request a non-violating thing be taken down.
- cortesoft 6y ago
  > Can rights holders be tricked into committing perjury? If I could interrogate your as long as I wanted, I am sure I could get you to perjure yourself three times. Keep asking slightly varied questions until I get you to answer similar questions two different ways.

pdonis 6y ago

> There's no reason to prohibit agent relationships But the relationship between Casio and YouTube in this instance is not an agent relationship. Casio isn't hiring YouTube to handle a complaint for them. They're just using the DMCA to bully YouTube into taking down the video. YouTube is not Casio's agent. What should happen is that Casio should have to file a lawsuit directly against the person who posted the video on YouTube; if it prevails in such a lawsuit, the court could then order YouTube to take down the video as part of its judgment. But unless and until that happens, YouTube would simply not be involved at all.

ikeboy 6y ago
You're just saying that the DMCA notice system should be abolished. But the system was established for a compelling purpose. Firstly, it provides a safe harbor to YouTube - nobody can sue YouTube for hosting infringing content if they comply with the DMCA. This is good. In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order, and this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content, and force the rights owner to sue for every piece of content.
- pdonis 6y ago
  > You're just saying that the DMCA notice system should be abolished. I think the entire DMCA should be abolished. > it provides a safe harbor to YouTube Why should YouTube have a safe harbor over and above making users who post content provide an affirmation, valid in a court of law, that they are the rightful owners of the content? Any prudent provider of hosting for content to random people on the Internet would do this. If the answer is that YouTube couldn't possibly do this for all of the millions of people who want to post content, how is that anything but YouTube's problem? Why should a draconian law be put in place simply to allow them to avoid having to do proper due diligence? Or to allow companies like Casio who want to bully people to be able to skip having to actually file a lawsuit? > In your system, we'd have to say nobody can sue YouTube regardless unless they don't comply with a court order No, we'd have to say that, once YouTube shows the court the legally valid affirmation it got from the user, such a suit would be dismissed. Which means, in practice, that when YouTube's lawyers sent the lawyers for whoever was complaining (Casio in this case) a copy of that legally valid affirmation, Casio's lawyers would tell Casio that they had no chance of winning a lawsuit and they should drop it. And if Casio tried to sue regardless, any reasonable judge would dismiss the suit and tell Casio to stop wasting the court's time (if the judge didn't decide to slap a fine on them for a frivolous lawsuit). > this makes it too easy for someone to set up an infringing website and simply say that someone else uploaded all the content Which would then bring the obvious next question: how did you confirm that the someone else was the rightful owner of all the content? And the answer "we didn't" would mean the infringing website owner would lose the lawsuit.

the8472 6y ago

> 3. This needs to be a ratio. If thousands of complaints are valid, it should require more than 3 mistaken ones. Perverse incentive: Pad your notice ratio by hiring infringers-as-a-service combined with immediate takedown. The requirement to reimburse costs and time for false takedown is a much better approach because it also punishes drawing out the process. The longer it takes the more costly it gets.

ikeboy 6y ago
You already need to pay costs for false notices under 512(f). It's just hard to enforce.