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>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 require

• 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?
  • ikeboy 6y ago
    >You can't just write "sworn" at the end of something you wrote with no one else present and call it an affidavit. I mean, I've personally submitted a declaration to a court, and all I did was digitally sign a document and email it to my lawyer. No notary required. Re jurisdiction: the current law doesn't require anyone posting on YouTube to accept US jurisdiction to anyone who wants to sue for infringement - they only require that if someone wants to file a counternotice. I think this is good. Posting a video shouldn't open you up to jurisdiction everywhere, but insisting your content remain accessible in the US in the face of an infringement allegation should. If your proposed affidavit doesn't increase the penalties for infringement, then the only purpose is to enforce jurisdiction? Re chilling effect: it depends on how relevant this affirmation is. I still don't think I understand exactly what you mean. But if it's enough to chill some infringement, then it's going to chill some legitimate speech as well, and if it's going to significantly chill infringement then it will significantly chill legitimate speech. That's the lesson of history. Every attempt at making it easier to censor has this effect. You can't avoid this trade-off.
    • pdonis 6y ago
      > I've personally submitted a declaration to a court A declaration is not the same as an affidavit. You are correct that a declaration does not require you to swear to it in front of anyone else, whereas an affidavit has to be sworn to before a notary or an officer of the court. But a declaration does have to include a statement that everything in it is true under penalty of perjury. That said, US law does allow declarations in many circumstances to be used instead of affidavits in Federal courts (I don't think all state courts do that), so the difference might be moot for this discussion. > Posting a video shouldn't open you up to jurisdiction everywhere, but insisting your content remain accessible in the US in the face of an infringement allegation should. I don't see the difference in practice. If YouTube takes down your content, they're going to do so everywhere, not just in the US, even if they're technically responding to a DMCA takedown notice that is based on US law or a court order issued by a US court. So if you aren't willing to be under US jurisdiction regarding content you post, you shouldn't be trying to post it on YouTube in the first place. Also, you have already pointed out elsewhere in this thread that YouTube already makes people sign a contractual agreement before they post. That contractual agreement is going to be judged under US law. So people are already accepting US legal jurisdiction regarding contract law before they post on YouTube. Accepting the same jurisdiction with regard to any potential copyright infringement claims does not seem like much of a difference to me. > if it's enough to chill some infringement, then it's going to chill some legitimate speech as well The same argument, if it were valid, would apply to the DMCA. The DMCA appear to me to be chilling a significant amount of legitimate speech. However, I don't think this argument is valid to begin with. I don't see any reason why anything that discourages infringement also has to discourage legitimate speech. The DMCA may well do both, but I see that as a problem with the DMCA, not something that can't be avoided.