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>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 t

by 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.
- ikeboy 6y ago
  >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. It's chilling to require everyone everywhere in the world to accept US jurisdiction in order to post on US websites. I like the system where people can post whatever they want, which will get taken down upon a DMCA notice if they don't want to accept US jurisdiction at that point. >Unless you are advocating that people be able to post content with no legal responsibility whatever, which doesn't seem reasonable. Here I think we're talking about US residents. If they post content, they're liable for regular copyright infringement in a lawsuit. But your proposal would make them subject to criminal prosecution for perjury, at least. If you weren't proposing any additional liability, there's be no need to go beyond the existing contracts. >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. But you're proposing getting this wrong subjects one to potential criminal liability, which we don't have in the current system. We do have criminal copyright infringement, but that's narrower than just infringement. You're right on moving the bar. The rest of that paragraph stands, however - ambiguous cases will be chilled more than under the current system.
  - pdonis 6y ago
    > It's chilling to require everyone everywhere in the world to accept US jurisdiction in order to post on US websites No, it's not, it's just standard law. As I said, everyone who wants to post on YouTube is already agreeing to a contract under US contract law (you yourself first pointed that out). > Here I think we're talking about US residents. I'm talking about anyone. Are you arguing that people should be able to post content, for free, from anywhere in the world, to YouTube with zero legal liability whatever, as long as they agree that the content can be taken down if there's a copyright infringement complaint? > your proposal would make them subject to criminal prosecution for perjury, at least If they made false claims about their copyright to what they post, yes. But if their claim is correct, it's not perjury. How is that a problem? > you're proposing getting this wrong subjects one to potential criminal liability I assume you're thinking of inadvertent infringers here. In the case described in the article, the person who posted the content knew (at least, so they claim) that they created all of that content themselves. Indeed, since they've submitted a DMCA counter notice, they have already made a statement to that effect under penalty of perjury (since a counter notice requires that). So there's no question of inadvertence or of risking criminal liability for something they didn't do. Either their claim is correct, in which case their statement is not perjury, or they are deliberately lying, in which case it is and should be punished as such. In the case of inadvertent infringement, someone who wasn't confident enough to make a statement under penalty of perjury wouldn't make one, so they wouldn't post the content at all. And if it is infringing, that's what we want. Unless YouTube gave them the "it's not worth the bother to me" alternative, in which case they wouldn't be making any statement under penalty of perjury to begin with, and inadvertently infringing content would be taken down exactly as it is now, on receipt of a complaint that YouTube judges to be legitimate. If you are saying that someone might not be confident enough in their understanding of fair use, for example, to be willing to state under penalty of perjury that their content is fair use, whereas they would post it if they didn't have to make such a statement, yes, that's true, and that's why I suggested the "it's not worth the bother to me" alternative. In fact, the "it's not worth the bother to me" alternative basically replicates what we have now under the DMCA. But the difference is that the DMCA imposes the same process on all cases, instead of letting people figure out by the natural process of evolution what process works best for different types of cases. > ambiguous cases will be chilled more than under the current system Again, I don't see how. Ambiguous cases now go to court. Ambiguous cases under my proposal might, but might not, depending on how the parties judge their positions after both sides have given each other the evidence they have. That's less "chilling", not more, because the risk of going to court and having to bear the costs is the chief "chilling" effect.

by ikeboy 6y ago

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.

ikeboy 6y ago
>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. It's chilling to require everyone everywhere in the world to accept US jurisdiction in order to post on US websites. I like the system where people can post whatever they want, which will get taken down upon a DMCA notice if they don't want to accept US jurisdiction at that point. >Unless you are advocating that people be able to post content with no legal responsibility whatever, which doesn't seem reasonable. Here I think we're talking about US residents. If they post content, they're liable for regular copyright infringement in a lawsuit. But your proposal would make them subject to criminal prosecution for perjury, at least. If you weren't proposing any additional liability, there's be no need to go beyond the existing contracts. >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. But you're proposing getting this wrong subjects one to potential criminal liability, which we don't have in the current system. We do have criminal copyright infringement, but that's narrower than just infringement. You're right on moving the bar. The rest of that paragraph stands, however - ambiguous cases will be chilled more than under the current system.
- pdonis 6y ago
  > It's chilling to require everyone everywhere in the world to accept US jurisdiction in order to post on US websites No, it's not, it's just standard law. As I said, everyone who wants to post on YouTube is already agreeing to a contract under US contract law (you yourself first pointed that out). > Here I think we're talking about US residents. I'm talking about anyone. Are you arguing that people should be able to post content, for free, from anywhere in the world, to YouTube with zero legal liability whatever, as long as they agree that the content can be taken down if there's a copyright infringement complaint? > your proposal would make them subject to criminal prosecution for perjury, at least If they made false claims about their copyright to what they post, yes. But if their claim is correct, it's not perjury. How is that a problem? > you're proposing getting this wrong subjects one to potential criminal liability I assume you're thinking of inadvertent infringers here. In the case described in the article, the person who posted the content knew (at least, so they claim) that they created all of that content themselves. Indeed, since they've submitted a DMCA counter notice, they have already made a statement to that effect under penalty of perjury (since a counter notice requires that). So there's no question of inadvertence or of risking criminal liability for something they didn't do. Either their claim is correct, in which case their statement is not perjury, or they are deliberately lying, in which case it is and should be punished as such. In the case of inadvertent infringement, someone who wasn't confident enough to make a statement under penalty of perjury wouldn't make one, so they wouldn't post the content at all. And if it is infringing, that's what we want. Unless YouTube gave them the "it's not worth the bother to me" alternative, in which case they wouldn't be making any statement under penalty of perjury to begin with, and inadvertently infringing content would be taken down exactly as it is now, on receipt of a complaint that YouTube judges to be legitimate. If you are saying that someone might not be confident enough in their understanding of fair use, for example, to be willing to state under penalty of perjury that their content is fair use, whereas they would post it if they didn't have to make such a statement, yes, that's true, and that's why I suggested the "it's not worth the bother to me" alternative. In fact, the "it's not worth the bother to me" alternative basically replicates what we have now under the DMCA. But the difference is that the DMCA imposes the same process on all cases, instead of letting people figure out by the natural process of evolution what process works best for different types of cases. > ambiguous cases will be chilled more than under the current system Again, I don't see how. Ambiguous cases now go to court. Ambiguous cases under my proposal might, but might not, depending on how the parties judge their positions after both sides have given each other the evidence they have. That's less "chilling", not more, because the risk of going to court and having to bear the costs is the chief "chilling" effect.