9 ms·

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

by 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.
- ikeboy 6y ago
  What do you mean by legally valid? Is there a difference between the proposed "affirmation" and what a counternotice currently says? >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. In other words, YouTube wouldn't exist, because it's impractical for YouTube to verify every single video. No other website powered by user generated content would exist. And now you know why the DMCA is needed. Unless of course you think we could do without any website hosting third party content.
  - pdonis 6y ago
    > What do you mean by legally valid? I mean the same standard that would be used for any other statement or deposition that was presented as evidence or testimony in a court. Normally that requires a statement made upon oath or affirmation and witnessed by a notary public or an officer of the court. > Is there a difference between the proposed "affirmation" and what a counternotice currently says? Yes, there's the obvious difference that the affirmation has to be provided before the content is posted, instead of after a DMCA notice has already been made (and in many cases the alleged infringing content will already have been taken down, assuming guilt instead of innocence). Under a sane legal regime, YouTube would have an affirmation, under the standards described above, before it ever allowed any content to be posted. So its first response on receiving a complaint of copyright infringement would be to provide a copy of that affirmation to whoever was making the complaint. Then whoever was making the complaint would have to provide some kind of evidence that that affirmation was fraudulent in order to get YouTube to pay attention. They wouldn't just be able to assert without any evidence that the content was infringing and have it taken down. In practice, under a sane legal regime, the vast majority of people who might want to post infringing content would not even be willing to go to the trouble of submitting an affirmation in the first place. The people who would (aside from large corporations) would be people who genuinely are creating something they want others to see, and want it enough to be willing to go through the affirmation process.
    - 6y ago

by ikeboy 6y ago

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.

ikeboy 6y ago
What do you mean by legally valid? Is there a difference between the proposed "affirmation" and what a counternotice currently says? >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. In other words, YouTube wouldn't exist, because it's impractical for YouTube to verify every single video. No other website powered by user generated content would exist. And now you know why the DMCA is needed. Unless of course you think we could do without any website hosting third party content.
- pdonis 6y ago
  > What do you mean by legally valid? I mean the same standard that would be used for any other statement or deposition that was presented as evidence or testimony in a court. Normally that requires a statement made upon oath or affirmation and witnessed by a notary public or an officer of the court. > Is there a difference between the proposed "affirmation" and what a counternotice currently says? Yes, there's the obvious difference that the affirmation has to be provided before the content is posted, instead of after a DMCA notice has already been made (and in many cases the alleged infringing content will already have been taken down, assuming guilt instead of innocence). Under a sane legal regime, YouTube would have an affirmation, under the standards described above, before it ever allowed any content to be posted. So its first response on receiving a complaint of copyright infringement would be to provide a copy of that affirmation to whoever was making the complaint. Then whoever was making the complaint would have to provide some kind of evidence that that affirmation was fraudulent in order to get YouTube to pay attention. They wouldn't just be able to assert without any evidence that the content was infringing and have it taken down. In practice, under a sane legal regime, the vast majority of people who might want to post infringing content would not even be willing to go to the trouble of submitting an affirmation in the first place. The people who would (aside from large corporations) would be people who genuinely are creating something they want others to see, and want it enough to be willing to go through the affirmation process.
  - 6y ago