4 ms·

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 si

by 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.

pdonis 6y ago
> 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. And yet, even the corporations like YouTube who can most afford to do the latter--to both investigate claims on their own, and to defend their decisions in court--don't. So this alternative is meaningless in practice. Also, you say elsewhere that YouTube is not the business of suing people frivolously (with which I agree), so a person who wants to post content might feel ok making a contract with them but not ok about being subjected to a lawsuit by some arbitrary company. Now take this a step further: wouldn't it be nice if YouTube, a company who far more afford to do so than the average person, were to include in their contract that, if they find that an infringement claim against a user's content is invalid, they will keep the content posted and defend it, if necessary, in court, and not require the user to do so? Or, better yet, they could give the user the option: either the user signs up for the "YouTube will defend my content if they believe it's legitimate" option, and provides the legal documentation supporting their legal ownership of copyright for the content they provide; or the user checks the box that says "if anyone complains that my content is infringing their copyright, just take it down and leave it at that, it's not worth the trouble to me". That, or something like it, is what I would expect to happen in a sane legal regime, where the law did not impose a one-size-fits-all solution on everybody, but treated everyone fairly and reasonably and allowed people with different preferences to find different solutions that suited them. But the DMCA "chills" all of that by providing even large corporations like YouTube, who least need it, a "safe harbor" that absolves them from having to do any work at all on actually figuring out how to meet the different needs of different users.
- ikeboy 6y ago
  YouTube does, in fact, have a program to defend fair use, and they reject DMCA notices in those cases. But it's expensive and they can't do it in every case. Lawyers are expensive. YouTube gets sued enough by idiots who think the DMCA safe harbor doesn't apply for whatever reason. Anyway, I disagree that YouTube doesn't need the safe harbor. If they had to pay a lawyer for a minute of time for every DMCA request received, they'd lose money. YouTube did innovate. They created a system for the largest content creators which automated complaints and created a special appeals process, which discourages DMCA complaints. They also placed protections on this program and ban people from it that submit too many false complaints.
pdonis 6y ago
> 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. It appears that we do indeed have different fundamental beliefs about what the law is for, and I agree that we're not going to resolve that kind of basic difference here. However, I do not think your implied dichotomy between applying "deontological" rules and judging by "which legal framework leads to the best results" is valid. For how do we judge which results are "best"? We can't just continue to judge by results, because that is an infinite regress. Sooner or later we must reach a point where we are simply applying some kind of deontological rule to prefer one state of affairs over another. It is true that I am applying a deontological rule "earlier" in the process, so to speak, than you are in this case. That is because I do not think that "judging by results" actually helps much in cases like this, because we simply do not have enough knowledge to reliably compare the results we have, under the current DMCA regime, with the results we would have if the DMCA were just abolished and we went back to relying on previous law (which is basically what I propose), or if we adopted some other course. We can try to make plausible arguments, but in most cases, as in this case, we simply end up with opposing sides each making plausible arguments for their side, and neither one having a clear advantage in that regard. Which means we are just back to applying deontological rules at square one anyway. As for the specific deontological rules I am applying, they are based on the same kind of skepticism regarding how much we actually know about how to govern, how to construct legal regimes, how to make public policy, etc. It seems to me that as a society we are vastly overconfident about our ability, or our legal and political leaders' ability, to craft policies that effectively address issues much beyond the very basic rules that are needed for any civil society--the basic common law crimes and civil offenses and the legal processes that have evolved over centuries to deal with them in a reasonable way. Even the concept of copyright itself is already going beyond those basic rules; but at least, before the DMCA (and before other laws that have done things like greatly extend copyright and patent terms and allowed for basically infinite renewals), copyright was dealt with using the same basic framework as other civil offenses like torts. The DMCA, viewed as charitably as possible (note that I don't actually believe this charitable view is entirely correct, since I suspect the motives of our legal and political leaders as much as I suspect their capabilities to effectively address issues), was an attempt to craft a more "efficient" way of dealing with copyright than the traditional framework for civil offenses. What it has in fact done, IMO, is prevent any actual innovation in the field of how to reconcile whatever is valid in copyright law with the technological changes introduced by computers and the Internet and the additional things people now want to do as a result of those technological changes. (The DMCA is by no means the only failure in this respect, but it's the one we're focusing on here.) Instead of a large corporation like YouTube, which, as I've said, is in the best possible position to figure out how to serve users with various preferences about how they want copyright complaints to be handled, actually figuring out how to do that, they are just punting based on the "safe harbor" the DMCA provides. Instead of people figuring out by natural evolution what the best ways are to meet the various preferences of users and respect the valid copyright claims of content owners, we are all operating under a one-size-fits-all system that was imposed by lawmakers well before something like YouTube even existed. There wasn't even an urgent need--at least, not according to anyone but media corporations unwilling to update their business models--for any legislation in this area at all in 1998. But we are still having to live under it now, 22 years and many orders of magnitude more Internet users later. What kind of sense does that make?

by ikeboy 6y ago

pdonis 6y ago

> 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. And yet, even the corporations like YouTube who can most afford to do the latter--to both investigate claims on their own, and to defend their decisions in court--don't. So this alternative is meaningless in practice. Also, you say elsewhere that YouTube is not the business of suing people frivolously (with which I agree), so a person who wants to post content might feel ok making a contract with them but not ok about being subjected to a lawsuit by some arbitrary company. Now take this a step further: wouldn't it be nice if YouTube, a company who far more afford to do so than the average person, were to include in their contract that, if they find that an infringement claim against a user's content is invalid, they will keep the content posted and defend it, if necessary, in court, and not require the user to do so? Or, better yet, they could give the user the option: either the user signs up for the "YouTube will defend my content if they believe it's legitimate" option, and provides the legal documentation supporting their legal ownership of copyright for the content they provide; or the user checks the box that says "if anyone complains that my content is infringing their copyright, just take it down and leave it at that, it's not worth the trouble to me". That, or something like it, is what I would expect to happen in a sane legal regime, where the law did not impose a one-size-fits-all solution on everybody, but treated everyone fairly and reasonably and allowed people with different preferences to find different solutions that suited them. But the DMCA "chills" all of that by providing even large corporations like YouTube, who least need it, a "safe harbor" that absolves them from having to do any work at all on actually figuring out how to meet the different needs of different users.

ikeboy 6y ago
YouTube does, in fact, have a program to defend fair use, and they reject DMCA notices in those cases. But it's expensive and they can't do it in every case. Lawyers are expensive. YouTube gets sued enough by idiots who think the DMCA safe harbor doesn't apply for whatever reason. Anyway, I disagree that YouTube doesn't need the safe harbor. If they had to pay a lawyer for a minute of time for every DMCA request received, they'd lose money. YouTube did innovate. They created a system for the largest content creators which automated complaints and created a special appeals process, which discourages DMCA complaints. They also placed protections on this program and ban people from it that submit too many false complaints.

pdonis 6y ago

> 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. It appears that we do indeed have different fundamental beliefs about what the law is for, and I agree that we're not going to resolve that kind of basic difference here. However, I do not think your implied dichotomy between applying "deontological" rules and judging by "which legal framework leads to the best results" is valid. For how do we judge which results are "best"? We can't just continue to judge by results, because that is an infinite regress. Sooner or later we must reach a point where we are simply applying some kind of deontological rule to prefer one state of affairs over another. It is true that I am applying a deontological rule "earlier" in the process, so to speak, than you are in this case. That is because I do not think that "judging by results" actually helps much in cases like this, because we simply do not have enough knowledge to reliably compare the results we have, under the current DMCA regime, with the results we would have if the DMCA were just abolished and we went back to relying on previous law (which is basically what I propose), or if we adopted some other course. We can try to make plausible arguments, but in most cases, as in this case, we simply end up with opposing sides each making plausible arguments for their side, and neither one having a clear advantage in that regard. Which means we are just back to applying deontological rules at square one anyway. As for the specific deontological rules I am applying, they are based on the same kind of skepticism regarding how much we actually know about how to govern, how to construct legal regimes, how to make public policy, etc. It seems to me that as a society we are vastly overconfident about our ability, or our legal and political leaders' ability, to craft policies that effectively address issues much beyond the very basic rules that are needed for any civil society--the basic common law crimes and civil offenses and the legal processes that have evolved over centuries to deal with them in a reasonable way. Even the concept of copyright itself is already going beyond those basic rules; but at least, before the DMCA (and before other laws that have done things like greatly extend copyright and patent terms and allowed for basically infinite renewals), copyright was dealt with using the same basic framework as other civil offenses like torts. The DMCA, viewed as charitably as possible (note that I don't actually believe this charitable view is entirely correct, since I suspect the motives of our legal and political leaders as much as I suspect their capabilities to effectively address issues), was an attempt to craft a more "efficient" way of dealing with copyright than the traditional framework for civil offenses. What it has in fact done, IMO, is prevent any actual innovation in the field of how to reconcile whatever is valid in copyright law with the technological changes introduced by computers and the Internet and the additional things people now want to do as a result of those technological changes. (The DMCA is by no means the only failure in this respect, but it's the one we're focusing on here.) Instead of a large corporation like YouTube, which, as I've said, is in the best possible position to figure out how to serve users with various preferences about how they want copyright complaints to be handled, actually figuring out how to do that, they are just punting based on the "safe harbor" the DMCA provides. Instead of people figuring out by natural evolution what the best ways are to meet the various preferences of users and respect the valid copyright claims of content owners, we are all operating under a one-size-fits-all system that was imposed by lawmakers well before something like YouTube even existed. There wasn't even an urgent need--at least, not according to anyone but media corporations unwilling to update their business models--for any legislation in this area at all in 1998. But we are still having to live under it now, 22 years and many orders of magnitude more Internet users later. What kind of sense does that make?