4 ms·

It's not a false dichotomy, it's an unavoidable trade-off. You haven't given enough details on your proposal for me to tell where this trade-off is made, but yo

by ikeboy 6y ago

It's not a false dichotomy, it's an unavoidable trade-off. You haven't given enough details on your proposal for me to tell where this trade-off is made, but you can't avoid this trade-off. Now you seem to be implying this affirmation is simply a contractual indemnification, which of course YouTube already has: >To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless YouTube, its Affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Service. >For example, the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so. It's not clear to me from the rest of your comments whether you believe this to be sufficient. If it is, then clearly this isn't enough to prevent infringement, and killing DMCA as an option would make it significantly more difficult to remove infringing content. Which might be what you want, I don't know. But the trade-off is real. >Legal systems have been dealing with reasonable issues like this since forever. A sane legal system is perfectly capable of evolving in response to new technologies, without compromising basic principles like "innocent until proven guilty", requirements to back up legal claims with evidence, handling claims through appropriate channels and not short-circuiting them, and fairness to all parties. Legal systems have been making a series of trade-offs for a long time. The trade-off here is that sometimes content is removed for up to 14 days and then put back. In exchange for that, there's a way for rights owners to resolve issues out of court.

pdonis 6y ago
> Now you seem to be implying this affirmation is simply a contractual indemnification A sworn statement under oath is not the same thing as a signed contract, so no, I am not implying this at all. > clearly this isn't enough to prevent infringement This is not "clear" to me at all. In the case described in the article, it is not clear that any infringement occurred. Casio claimed that the content was infringing, but the person who posted the content, and who has described in detail how and why he created it, claimed it wasn't. I personally believe the person who posted the content, not Casio, given everything said in the article; but it's not up to me, or you, or Casio or the person who posted the content to make a final determination on that if there's a conflict. It's up to a court of law. In other words, your statement here is a great illustration of the problem I have with the DMCA: whether or not something is "infringement" is decided on the say-so of whoever complains, not by a fair legal process. You have simply assumed that every claim of "infringement" must be valid. You can't assume that. > Legal systems have been making a series of trade-offs for a long time. Yes, and the way they have been doing so in cases where you have two parties making conflicting claims is called a court of law. The parties come into court and argue their cases, and the court makes a ruling. That is what is supposed to happen. What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it. That's not how the legal process is supposed to work. Particularly when the party that is getting its claim accepted as fact is the party with far more resources for a legal battle if there is going to be one, and the party who is forced to try to fight if they object is the party with far less resources to do the fighting. The law is supposed to protect the weak against the strong. It's not supposed to "protect" the strong against the weak.
- ikeboy 6y ago
  I never assumed that. The DMCA never assumes that, which is why there's an entire section about counternotices. The fact that YouTube receives many legitimate complaints of infringement is common knowledge. If you genuinely believe this isn't the case, look through their transparency report. >What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it. All they need to do is file a counternotice, which is less difficult than the affirmation you're proposing, if you need a notary. And then if the rights owner doesn't like it, they need to go to court. Is the 14 day period for this to happen really that objectionable? If it was changed to 1 day, would you be ok with it?
  - pdonis 6y ago
    > The fact that YouTube receives many legitimate complaints of infringement is common knowledge. No, the fact that YouTube receives many complaints of infringement is common knowledge. How many of them are actually legitimate is impossible to judge since in many cases the content is now invisible and no due process was ever applied. > look through their transparency report And then look at this, for example: https://www.eff.org/deeplinks/2012/07/top-10-takedowns-googles-copyright-transparency-report https://www.eff.org/deeplinks/2012/07/top-10-takedowns-googl... > Is the 14 day period for this to happen really that objectionable? It's not a matter of how "objectionable" the 14 day period is. I object to the entire premise of the law in the first place, that someone should be able to make a claim that someone else is violating the law (that's what copyright infringement is), and have that claim acted on as if it were valid with no legal due process. Taking the content down based on the claim alone is acting on the claim as if it were valid. It doesn't matter if there's a way to reverse the action in 14 days, or even 1 day. Legal claims are not supposed to be acted on as if valid at all without legal due process.
    - ikeboy 6y ago
      Sure, there's plenty of abuse. That doesn't mean there aren't plenty of legitimate notices. I don't think you can seriously tell me you don't think there's a significant amount of legitimate DMCA notices. They can't all be abusive. You're making what amounts to a deontological challenge to the law, which I reject. The question for me is which legal framework leads to the best results. If you're not trying to answer that question but are instead trying to make sure it comports with some rule you think laws should follow, then I'm not going to be able to convince you within the framework you're working in, and vice versa. But we should understand the difference in frameworks, if that's what's really going on. Also, all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.

by ikeboy 6y ago

pdonis 6y ago

> Now you seem to be implying this affirmation is simply a contractual indemnification A sworn statement under oath is not the same thing as a signed contract, so no, I am not implying this at all. > clearly this isn't enough to prevent infringement This is not "clear" to me at all. In the case described in the article, it is not clear that any infringement occurred. Casio claimed that the content was infringing, but the person who posted the content, and who has described in detail how and why he created it, claimed it wasn't. I personally believe the person who posted the content, not Casio, given everything said in the article; but it's not up to me, or you, or Casio or the person who posted the content to make a final determination on that if there's a conflict. It's up to a court of law. In other words, your statement here is a great illustration of the problem I have with the DMCA: whether or not something is "infringement" is decided on the say-so of whoever complains, not by a fair legal process. You have simply assumed that every claim of "infringement" must be valid. You can't assume that. > Legal systems have been making a series of trade-offs for a long time. Yes, and the way they have been doing so in cases where you have two parties making conflicting claims is called a court of law. The parties come into court and argue their cases, and the court makes a ruling. That is what is supposed to happen. What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it. That's not how the legal process is supposed to work. Particularly when the party that is getting its claim accepted as fact is the party with far more resources for a legal battle if there is going to be one, and the party who is forced to try to fight if they object is the party with far less resources to do the fighting. The law is supposed to protect the weak against the strong. It's not supposed to "protect" the strong against the weak.

ikeboy 6y ago
I never assumed that. The DMCA never assumes that, which is why there's an entire section about counternotices. The fact that YouTube receives many legitimate complaints of infringement is common knowledge. If you genuinely believe this isn't the case, look through their transparency report. >What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it. All they need to do is file a counternotice, which is less difficult than the affirmation you're proposing, if you need a notary. And then if the rights owner doesn't like it, they need to go to court. Is the 14 day period for this to happen really that objectionable? If it was changed to 1 day, would you be ok with it?
- pdonis 6y ago
  > The fact that YouTube receives many legitimate complaints of infringement is common knowledge. No, the fact that YouTube receives many complaints of infringement is common knowledge. How many of them are actually legitimate is impossible to judge since in many cases the content is now invisible and no due process was ever applied. > look through their transparency report And then look at this, for example: https://www.eff.org/deeplinks/2012/07/top-10-takedowns-googles-copyright-transparency-report https://www.eff.org/deeplinks/2012/07/top-10-takedowns-googl... > Is the 14 day period for this to happen really that objectionable? It's not a matter of how "objectionable" the 14 day period is. I object to the entire premise of the law in the first place, that someone should be able to make a claim that someone else is violating the law (that's what copyright infringement is), and have that claim acted on as if it were valid with no legal due process. Taking the content down based on the claim alone is acting on the claim as if it were valid. It doesn't matter if there's a way to reverse the action in 14 days, or even 1 day. Legal claims are not supposed to be acted on as if valid at all without legal due process.
  - ikeboy 6y ago
    Sure, there's plenty of abuse. That doesn't mean there aren't plenty of legitimate notices. I don't think you can seriously tell me you don't think there's a significant amount of legitimate DMCA notices. They can't all be abusive. You're making what amounts to a deontological challenge to the law, which I reject. The question for me is which legal framework leads to the best results. If you're not trying to answer that question but are instead trying to make sure it comports with some rule you think laws should follow, then I'm not going to be able to convince you within the framework you're working in, and vice versa. But we should understand the difference in frameworks, if that's what's really going on. Also, all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.