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>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 ca

by 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.
- ikeboy 6y ago
  It's not standard law to require them to accept jurisdiction by anyone who wants to sue. I'm arguing that people should be able to post to YouTube from anywhere, and be subject to liability wherever they normally have jurisdiction, plus be subject to liability if sued by YouTube as per the contract with YouTube. >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? It creates criminal liability for ambiguous fair use cases. And if you don't create additional liability, then your system is no different than the current one. >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. DMCA doesn't impose it, it just offers it as an option to companies that want the safe harbor. A company is free to ignore a DMCA complaint if they don't think it's valid. They still keep the safe harbor for other cases, they just lose it for that specific notice. >Ambiguous cases now go to court. Some ambiguous cases get reinstated after a counternotice is submitted. In your system, a lawsuit would need to be filed. This would mean some things stay down.
  - pdonis 6y ago
    > It creates criminal liability for ambiguous fair use cases. Ah, ok, I thought that's what you might be referring to. I covered that later in my post, suggesting the "it's not worth the trouble to me" alternative for such cases. What the DMCA does not provide is a way for people like the person described in the article, who know they created all the content they are posting themselves, to tell Company Y (YouTube or Github or whomever) that they are confident enough in their legal ownership of the content, because they know they created it themselves, to say so under penalty of perjury, so Company Y would already have a pre-set response to any claim of infringement. See further comments below. > Some ambiguous cases get reinstated after a counternotice is submitted. In your system, a lawsuit would need to be filed. Not at all. In such a case, under the DMCA, the content gets reinstated because Company Y believes the counter notice to be legitimate. In my proposed scenario, the content would never be taken down in the first place, because Company Y would have the equivalent of the counter notice (the legal document from the person who posted the content) already in hand when the complaint from Company X arrived, and would simply provide a copy to Company X (Step 2 of my process). So this content would be chilled less under my scenario, since it wouldn't be taken down at all, whereas under the DMCA it would be taken down for up to 14 days (or even longer if it took longer for the counter notice to be filed).

by ikeboy 6y ago

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.

ikeboy 6y ago
It's not standard law to require them to accept jurisdiction by anyone who wants to sue. I'm arguing that people should be able to post to YouTube from anywhere, and be subject to liability wherever they normally have jurisdiction, plus be subject to liability if sued by YouTube as per the contract with YouTube. >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? It creates criminal liability for ambiguous fair use cases. And if you don't create additional liability, then your system is no different than the current one. >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. DMCA doesn't impose it, it just offers it as an option to companies that want the safe harbor. A company is free to ignore a DMCA complaint if they don't think it's valid. They still keep the safe harbor for other cases, they just lose it for that specific notice. >Ambiguous cases now go to court. Some ambiguous cases get reinstated after a counternotice is submitted. In your system, a lawsuit would need to be filed. This would mean some things stay down.
- pdonis 6y ago
  > It creates criminal liability for ambiguous fair use cases. Ah, ok, I thought that's what you might be referring to. I covered that later in my post, suggesting the "it's not worth the trouble to me" alternative for such cases. What the DMCA does not provide is a way for people like the person described in the article, who know they created all the content they are posting themselves, to tell Company Y (YouTube or Github or whomever) that they are confident enough in their legal ownership of the content, because they know they created it themselves, to say so under penalty of perjury, so Company Y would already have a pre-set response to any claim of infringement. See further comments below. > Some ambiguous cases get reinstated after a counternotice is submitted. In your system, a lawsuit would need to be filed. Not at all. In such a case, under the DMCA, the content gets reinstated because Company Y believes the counter notice to be legitimate. In my proposed scenario, the content would never be taken down in the first place, because Company Y would have the equivalent of the counter notice (the legal document from the person who posted the content) already in hand when the complaint from Company X arrived, and would simply provide a copy to Company X (Step 2 of my process). So this content would be chilled less under my scenario, since it wouldn't be taken down at all, whereas under the DMCA it would be taken down for up to 14 days (or even longer if it took longer for the counter notice to be filed).