6 ms·

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 th

• 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.
  • ikeboy 6y ago
    >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. You don't need a notary for affidavits, just a sworn declaration. Anyway, would you require anyone who posts content to agree to US jurisdiction, as the counternotice process currently allows? And how would the penalties for copyright infringement after such an affidavit were submitted look like in your system, as compared to the penalties for copyright infringement currently, or compared to the penalties for submitting a false counternotice currently? Do you realize there would be a significant chilling effect on fair use speech under your proposal?
    • pdonis 6y ago
      > You don't need a notary for affidavits, just a sworn declaration. I think this depends on the jurisdiction, but anyway, "sworn" still means someone like an officer of the court has to be present, and the affidavit has to show that that was the case. You can't just write "sworn" at the end of something you wrote with no one else present and call it an affidavit. > would you require anyone who posts content to agree to US jurisdiction It would be the jurisdiction that has legal power over the corporation that is hosting the content. So if that corporation is a US corporation, then yes, it would be US jurisdiction. If claims of copyright infringement are going to be allowed at all (and if they're not, this whole discussion is pointless), then they have to be made under some jurisdiction. I believe what I said above is how such claims would be handled if the DMCA did not exist. > how would the penalties for copyright infringement after such an affidavit were submitted look like in your system, as compared to the penalties for copyright infringement currently They would be the same, since copyright infringement as an offense remains the same. > compared to the penalties for submitting a false counternotice currently I don't think DMCA penalties are a useful comparison since they're not the product of a fair and reasonable legal process to begin with. > Do you realize there would be a significant chilling effect on fair use speech under your proposal? There would? How so?
      • 6y ago
• pdonis 6y ago
  > In other words, YouTube wouldn't exist, because it's impractical for YouTube to verify every single video I never said they had to "verify every single video". They just need the legal document I describe. The whole point of having the document is that that is the "verification"; they don't have to try to independently scrutinize everything. They are putting the legal burden on the person posting the content, which is where it belongs. The "obvious next question" I gave was for websites that don't have the legal document I describe. Whicn some random person trying to let other random people post infringing content would not have. But YouTube certainly could have it. The only reason it doesn't now is that we live in an insane legal regime that thinks the DMCA is just fine, instead of being the draconian mess that it is. > No other website powered by user generated content would exist. Websites powered by user generated content have an obvious way to exist under a sane legal regime: if there is a cost involved in obtaining the appropriate legal affirmation from users who post content, then charge those users for the services being provided, and include in those charges the costs of dealing with the legal requirements. But again, we live in an insane world where it's thought to be better to prop up the ad-supported business model, with all of its many serious flaws, than to have the law actually be reasonable and force large corporations to figure out business models that actually serve their users instead of selling their data.
  • ikeboy 6y ago
    So you would effectively destroy all free user generated content sites, and a good portion of the cheap ones as well. Just good to make that clear upfront when evaluating your proposal, so people could decide if this is really less draconian than the current system.
    • pdonis 6y ago
      > So you would effectively destroy all free user generated content sites If it's impossible to do reasonable due diligence without charging users, yes. Posting content has a cost; it is entirely reasonable for users who want to post the content to bear at least a portion of that cost. > a good portion of the cheap ones as well Depends on what you mean by "cheap" and how much it would cost to actually do reasonable due diligence in a sane legal regime. I don't think it would cost much at all per user, particularly for a site like YouTube which has so many users. Which brings up another point: a large corporation like Google, owning a site like YouTube, is precisely the kind of corporation that ought to figure out a cheap way to do reasonable due diligence and handle things like having people provide a legal document before they upload content, and work with the legal system to develop a way of dealing with this that is fair and reasonable to all parties. And yet they are too lazy to do that, and depend on draconian laws instead to give them a supposed "safe harbor" against claims that, in a sane world, they would be able to refute and dismiss with minimal effort. And, further, the government is precisely the entity that, when large corporations fail to do what they ought to do, is supposed to make them do it, as the representative of the interests of the people. What our government did, instead, was to simply capitulate to the demands of the large corporations, and to fail to require them to do any due diligence at all, instead putting all the burden on the individuals who are posting legitimate content they created that gets mistaken by some corporation for copyrighted content--or the corporation simply decides not to care whether the content is infringing or not, because they see value in showing everyone else that they can bully whomever they want and not get stopped. And you are arguing that all this is perfectly fine and proper. Just to make that clear upfront so people know what you are really saying.