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>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 declarat

by 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.
- ikeboy 6y ago
  >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. You might think that everything you post is fine under US law (after all, you signed a contract with YouTube saying so), but you aren't willing to defend yourself in US court, if someone were to challenge that. You'd rather just let the content be taken down if challenged. 99.9% of the people that feel this way won't have any issues, but the few that do should simply have their content removed, and shouldn't be forced to face US jurisdiction. >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. YouTube is not in the business of suing people frivolously. They rarely sue anyone at all, and the few times they do sue, they probably have a decent case. One might feel comfortable contracting with a company like that, knowing their reputation will take a hit if they file such a suit, but not feel the same about any arbitrary company making an infringement allegation. >The DMCA appear to me to be chilling a significant amount of legitimate speech. Sure, but anything chilled by the DMCA I think is similarly chilled by your proposal. Speech chilled by the DMCA: 1. By people who don't want to face US jurisdiction just to be able to keep their legitimate content posted 2. People who aren't legally savvy and don't feel comfortable filing a DMCA counternotice (I've seen plenty of people who didn't understand how to file such a notice, or who feel uncomfortable with the potential legal consequences of such) It seems to me that your proposal equally chills both of those categories. >I don't see any reason why anything that discourages infringement also has to discourage legitimate speech Because whether something is fair use is often ambiguous. If it was immediately obvious to everyone, court cases would be resolved much sooner. Moving the bar will move more cases into the ambiguous area. There might be clever ways around this, but you need to be clever. E.g. giving judges more power to award discretionary sanctions will make cases riskier to bring (or to defend), which changes incentives, so it doesn't solve the issue and isn't clever enough. Everything is trade-offs.
  - pdonis 6y ago
    > It seems to me that your proposal equally chills both of those categories. People who don't want to face US jurisdiction to keep legitimate content posted are going to be "chilled" as long as the place where they want to post it is in US jurisdiction. But I don't see how "chilling" is a reasonable way to describe this. Every corporation is going to have to be under some jurisdiction; there's no way for anyone to post content that's simply free of any legal jurisdiction, so calling it "chilling" to have to pick one doesn't seem reasonable to me. > People who aren't legally savvy and don't feel comfortable filing a DMCA counternotice People who don't feel comfortable with legal documents are going to be "chilled" by any activity that requires them to take legal responsibility by signing a legal document. But again, I don't see how "chilling" is a reasonable way to describe this. Unless you are advocating that people be able to post content with no legal responsibility whatever, which doesn't seem reasonable. > whether something is fair use is often ambiguous Yes, and that's why we have law courts, to allow both parties a fair chance to make their case in ambiguous situations before a ruling is made and action is taken. > Moving the bar will move more cases into the ambiguous area. What I propose does not "move the bar" at all; it doesn't change the legal definition of what copyright infringement is or what the allowed exceptions are.

by ikeboy 6y ago

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.

ikeboy 6y ago
>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. You might think that everything you post is fine under US law (after all, you signed a contract with YouTube saying so), but you aren't willing to defend yourself in US court, if someone were to challenge that. You'd rather just let the content be taken down if challenged. 99.9% of the people that feel this way won't have any issues, but the few that do should simply have their content removed, and shouldn't be forced to face US jurisdiction. >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. YouTube is not in the business of suing people frivolously. They rarely sue anyone at all, and the few times they do sue, they probably have a decent case. One might feel comfortable contracting with a company like that, knowing their reputation will take a hit if they file such a suit, but not feel the same about any arbitrary company making an infringement allegation. >The DMCA appear to me to be chilling a significant amount of legitimate speech. Sure, but anything chilled by the DMCA I think is similarly chilled by your proposal. Speech chilled by the DMCA: 1. By people who don't want to face US jurisdiction just to be able to keep their legitimate content posted 2. People who aren't legally savvy and don't feel comfortable filing a DMCA counternotice (I've seen plenty of people who didn't understand how to file such a notice, or who feel uncomfortable with the potential legal consequences of such) It seems to me that your proposal equally chills both of those categories. >I don't see any reason why anything that discourages infringement also has to discourage legitimate speech Because whether something is fair use is often ambiguous. If it was immediately obvious to everyone, court cases would be resolved much sooner. Moving the bar will move more cases into the ambiguous area. There might be clever ways around this, but you need to be clever. E.g. giving judges more power to award discretionary sanctions will make cases riskier to bring (or to defend), which changes incentives, so it doesn't solve the issue and isn't clever enough. Everything is trade-offs.
- pdonis 6y ago
  > It seems to me that your proposal equally chills both of those categories. People who don't want to face US jurisdiction to keep legitimate content posted are going to be "chilled" as long as the place where they want to post it is in US jurisdiction. But I don't see how "chilling" is a reasonable way to describe this. Every corporation is going to have to be under some jurisdiction; there's no way for anyone to post content that's simply free of any legal jurisdiction, so calling it "chilling" to have to pick one doesn't seem reasonable to me. > People who aren't legally savvy and don't feel comfortable filing a DMCA counternotice People who don't feel comfortable with legal documents are going to be "chilled" by any activity that requires them to take legal responsibility by signing a legal document. But again, I don't see how "chilling" is a reasonable way to describe this. Unless you are advocating that people be able to post content with no legal responsibility whatever, which doesn't seem reasonable. > whether something is fair use is often ambiguous Yes, and that's why we have law courts, to allow both parties a fair chance to make their case in ambiguous situations before a ruling is made and action is taken. > Moving the bar will move more cases into the ambiguous area. What I propose does not "move the bar" at all; it doesn't change the legal definition of what copyright infringement is or what the allowed exceptions are.