6 ms·

We need strict liability for false DMCA notices plus automatic award of attorney fees in a successful 512(f) case. Would fix 95% of the abuse.

by ikeboy 6y ago

elliekelly 6y ago
I wonder if a system like this could work to prevent abuse: - Alleged copyright owners pay $X to file a DMCA notice - Accused copyright infringers pay $Y to file a counter-notice - Funds are held in escrow - If the accused doesn't file a counter-notice within 10 days the copyright owner gets their $X back - If a counter-notice is filed and the alleged copyright owner doesn't file suit within 90 days, no matter the reason, the accused infringer gets their $Y back. - The pool of remaining funds is first used to offset the website's cost of credit card transactions for collecting filing fees and then any additional funds go to the Library of Congress.
- ikeboy 6y ago
  In what circumstances would escrowed money be forfeited? If the escrowed money doesn't go to the parties, then there's no incentive from either side to consider the other side's escrow when determining their actions. Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I think you need a lot more details on what happens in each scenario here.
  - Buttons840 6y ago
    The circumstances where the escrow IS NOT returned would be the forfeitures. You have to read between the lines since the comment only specifies when escrow IS returned. So, alleged copyright owner loses escrow when a counter claim is filed. The accused loses escrow when a lawsuit is filed. This detail isn't as important as the overall result. Those who engage in mass DMCA abuse will directly lose money as a result.
    - deleted 6y ago
      [deleted]
    - ac29 6y ago
      > The accused loses escrow when a lawsuit is filed. So all the alleged copyright owner needs to do to deprive the accused of $Y is file a lawsuit (which could be completely lacking in merit)? That is arguably worse than the status quo, unless $Y is trivially small, in which case it lacks meaning to begin with.
      - wtallis 6y ago
        If the plaintiff's case lacks merit, the defendant will get $Y back when the plaintiff loses, plus other fees, and the plaintiff who wasted everyone's time pays all of those costs and potentially punitive damages or sanctions if it was a really egregious abuse of the takedown process.
  - elliekelly 6y ago
    > In what circumstances would escrowed money be forfeited? When a counter-notice is filed (and so the material at issue is put back online) but a lawsuit is never filed the $X would be forfeit. When a counter-notice is filed and a lawsuit is filed then both $X and $Y would be forfeit. > Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I would imagine $X and $Y being small enough dollar amounts that this maneuver wouldn't be worthwhile.
    - ikeboy 6y ago
      Sounds too harsh for the first, unless $X is very low. What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.
      - elliekelly 6y ago
        > What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? You would still want the copyright-infringing material removed regardless of their ability to pay. > you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees.
        ikeboy 6y ago
        >You would still want the copyright-infringing material removed regardless of their ability to pay. But it might not be cost effective to file a suit. Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged. >In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees. That's if the courts are involved. The nice thing about the DMCA is it provides a completely free way to assert your rights, and the other side must file a lawsuit in order to change that. I guess your proposal would still require a lawsuit to be filed before you actually lose money, but even putting money up in escrow seems like too much to require.
- Buttons840 6y ago
  Seems like a good idea to me. Are you thinking of small or large values for $X and $Y?
  - elliekelly 6y ago
    That is the question. If the dollar amount is too low then big companies could afford to abuse the process but if the dollar amount is too high it would be difficult for individual content owners to assert their rights. I was thinking $100 to file an initial claim and $50 to file a counter-claim but I really don't know. Or perhaps a mechanism where the cost to file an initial claim goes up to $1000 after a person/entity has filed a certain number of claims for the year?
    - ikeboy 6y ago
      I really like counternotices being free. You shouldn't have to pay for standing up for your rights. I'm open to payments for DMCA notices, but it shouldn't be forfeited just because someone filed a counternotice. I think a better system would involve the escrowed money going to the other party, and allow some sort of small claims court to adjudicate those matters. Although it still feels extraneous. If there's strict liability for false claims and automatic lawyer fee awards then we'll get an industry of contingency lawyers taking such cases in hopes of an award.
      - everfree 6y ago
        Notices should also be free by that logic, since by sending one you're also standing up for your rights. Everyone likes to imagine DMCA senders as large companies and trolls, and it's true that that's a large section of them, but not all. There are also individuals who have had their blog articles copied, independent photographers who have had their photos used without permission, videographers whose videos have been copied to other YouTube channels. In some situations DMCA can help the little guy too.
        ikeboy 6y ago
- austincheney 6y ago
  How would that be enforceable on parties outside the US?
  - wtallis 6y ago
    Anyone filing a DMCA counter-notice from outside the US agrees to submit to the jurisdiction of a US federal court, or else the counter-notice is invalid.
- zchrykng 6y ago
  Unless the amounts in question are nominal, the accused infringers will just get crushed by copyright claims.
  - wtallis 6y ago
    If you have to put up money to file a counter-notice but you get it back when the content gets restored, you're only out that money for at most 10 business days, and only having to put up money for at most one notice at a time per work you've uploaded. That's probably still a bit unfair to the victims of DMCA abuse, but it's hard to financially crush an accused infringer this way. And if the accused infringer gets part of the accuser's fee when the accuser declines to take the dispute to court, then users have a chance to make money off insincere copyright trolls.
    - dpbriggs 6y ago
      If the amount is large small creators will be crushed under this system, unable to afford the deposit.
      - wtallis 6y ago
        Did you mean to post this elsewhere? My comment and the one above it were specifically about the targets of takedown notices, not senders.
- Supermancho 6y ago
  That's complicated. This isn't what lawmakers are interested in passing. Broad "get it done however" motions is how modern laws are written, with some very notable exceptions due to lobbying.
  - elliekelly 6y ago
    It doesn't need to be a law passed by Congress. Congress need only pass a law authorizing the USPTO (or FTC, or FCC, or whoever) to promulgate a system that facilitates DMCA compliance while disincentivizing its abuse. Then the USPTO would set the rules and parameters and oversee compliance. That's how most modern regulations are written.
    - mr_spothawk 6y ago
      > It doesn't need to be a law passed by Congress. Then why should I (or anybody) be expected to follow it? And before you say "modern regulations" I'll point out that my position generally is that regulations instead of law are how we've gotten so deranged in the first place. Also, the money is fucked.
      - gmanley 6y ago
        Same reason you follow rules set by the FCC and don't create your own pirate radio. They have there own enforcement.
        mr_spothawk 6y ago
        Eh... i don't have a pirate radio because i'm lazy, not because i'm afraid.
    - salawat 6y ago
      I'd say that does an end run around the process the Founders put in place for good reason. It was not specified in the Constitution that the Congress shall delegate the finer details of lawmaking to the Executive Branch in the form of Administrative Law. It said that legislative power is wielded specifically by the Congress. Given that judicial review takes as an input the intent Oof the Congress, it seems daft to leave the intent to question by not having the details worked out by the legislature. This has the practical upshot in disincentivizing unnecessary or frivolous lawmaking to boot. If instead of spending time trying to jam in notionary laws into an omnibus bill somewhere, a legislator had to come to terms with the how, not just the what, I'd wager we'd over time start to see a far morecohesive legal landscape begin to take shape.
- NotACop182 6y ago
  The problem is Company A has deep pockets person B doesn’t. If the amount is too small to file DMCA it wont change a thing. If it’s too high person B won’t be able to fight or put money in escrow. Sounds great and all but I don’t see a working solution to what I stated above.
- nullc 6y ago
  I think you've got the wrong balance. Copyright claimant should get their X back if there is no counter notice OR if a lawsuit is filed. (if the file a lawsuit that's enough cost to them). Accused should always get their funds back plus half of the alleged's fees if a lawsuit isn't filed, but they're sent back to the contact information set in the counter-notice-- so they are incentivized to make that information accurate. $X should also be substantial, at least equivalent to the cost of bringing a lawsuit. $Y should be nominal, just to discourage providing false information.

We need strict liability for false DMCA notices plus automatic award of attorney fees in a successful 512(f) case. Would fix 95% of the abuse.

by ikeboy 6y ago

We need strict liability for false DMCA notices plus automatic award of attorney fees in a successful 512(f) case. Would fix 95% of the abuse.

elliekelly 6y ago

I wonder if a system like this could work to prevent abuse: - Alleged copyright owners pay $X to file a DMCA notice - Accused copyright infringers pay $Y to file a counter-notice - Funds are held in escrow - If the accused doesn't file a counter-notice within 10 days the copyright owner gets their $X back - If a counter-notice is filed and the alleged copyright owner doesn't file suit within 90 days, no matter the reason, the accused infringer gets their $Y back. - The pool of remaining funds is first used to offset the website's cost of credit card transactions for collecting filing fees and then any additional funds go to the Library of Congress.

ikeboy 6y ago
In what circumstances would escrowed money be forfeited? If the escrowed money doesn't go to the parties, then there's no incentive from either side to consider the other side's escrow when determining their actions. Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I think you need a lot more details on what happens in each scenario here.
- Buttons840 6y ago
  The circumstances where the escrow IS NOT returned would be the forfeitures. You have to read between the lines since the comment only specifies when escrow IS returned. So, alleged copyright owner loses escrow when a counter claim is filed. The accused loses escrow when a lawsuit is filed. This detail isn't as important as the overall result. Those who engage in mass DMCA abuse will directly lose money as a result.
  - deleted 6y ago
    [deleted]
  - ac29 6y ago
    > The accused loses escrow when a lawsuit is filed. So all the alleged copyright owner needs to do to deprive the accused of $Y is file a lawsuit (which could be completely lacking in merit)? That is arguably worse than the status quo, unless $Y is trivially small, in which case it lacks meaning to begin with.
    - wtallis 6y ago
      If the plaintiff's case lacks merit, the defendant will get $Y back when the plaintiff loses, plus other fees, and the plaintiff who wasted everyone's time pays all of those costs and potentially punitive damages or sanctions if it was a really egregious abuse of the takedown process.
- elliekelly 6y ago
  > In what circumstances would escrowed money be forfeited? When a counter-notice is filed (and so the material at issue is put back online) but a lawsuit is never filed the $X would be forfeit. When a counter-notice is filed and a lawsuit is filed then both $X and $Y would be forfeit. > Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I would imagine $X and $Y being small enough dollar amounts that this maneuver wouldn't be worthwhile.
  - ikeboy 6y ago
    Sounds too harsh for the first, unless $X is very low. What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.
    - elliekelly 6y ago
      > What if you learn from the counternotice that they're not going to be able to be able to pay a judgement? You would still want the copyright-infringing material removed regardless of their ability to pay. > you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees.
      - ikeboy 6y ago
        >You would still want the copyright-infringing material removed regardless of their ability to pay. But it might not be cost effective to file a suit. Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged. >In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees. That's if the courts are involved. The nice thing about the DMCA is it provides a completely free way to assert your rights, and the other side must file a lawsuit in order to change that. I guess your proposal would still require a lawsuit to be filed before you actually lose money, but even putting money up in escrow seems like too much to require.
Buttons840 6y ago
Seems like a good idea to me. Are you thinking of small or large values for $X and $Y?
- elliekelly 6y ago
  That is the question. If the dollar amount is too low then big companies could afford to abuse the process but if the dollar amount is too high it would be difficult for individual content owners to assert their rights. I was thinking $100 to file an initial claim and $50 to file a counter-claim but I really don't know. Or perhaps a mechanism where the cost to file an initial claim goes up to $1000 after a person/entity has filed a certain number of claims for the year?
  - ikeboy 6y ago
    I really like counternotices being free. You shouldn't have to pay for standing up for your rights. I'm open to payments for DMCA notices, but it shouldn't be forfeited just because someone filed a counternotice. I think a better system would involve the escrowed money going to the other party, and allow some sort of small claims court to adjudicate those matters. Although it still feels extraneous. If there's strict liability for false claims and automatic lawyer fee awards then we'll get an industry of contingency lawyers taking such cases in hopes of an award.
    - everfree 6y ago
      Notices should also be free by that logic, since by sending one you're also standing up for your rights. Everyone likes to imagine DMCA senders as large companies and trolls, and it's true that that's a large section of them, but not all. There are also individuals who have had their blog articles copied, independent photographers who have had their photos used without permission, videographers whose videos have been copied to other YouTube channels. In some situations DMCA can help the little guy too.
      - ikeboy 6y ago
austincheney 6y ago
How would that be enforceable on parties outside the US?
- wtallis 6y ago
  Anyone filing a DMCA counter-notice from outside the US agrees to submit to the jurisdiction of a US federal court, or else the counter-notice is invalid.
zchrykng 6y ago
Unless the amounts in question are nominal, the accused infringers will just get crushed by copyright claims.
- wtallis 6y ago
  If you have to put up money to file a counter-notice but you get it back when the content gets restored, you're only out that money for at most 10 business days, and only having to put up money for at most one notice at a time per work you've uploaded. That's probably still a bit unfair to the victims of DMCA abuse, but it's hard to financially crush an accused infringer this way. And if the accused infringer gets part of the accuser's fee when the accuser declines to take the dispute to court, then users have a chance to make money off insincere copyright trolls.
  - dpbriggs 6y ago
    If the amount is large small creators will be crushed under this system, unable to afford the deposit.
    - wtallis 6y ago
      Did you mean to post this elsewhere? My comment and the one above it were specifically about the targets of takedown notices, not senders.
Supermancho 6y ago
That's complicated. This isn't what lawmakers are interested in passing. Broad "get it done however" motions is how modern laws are written, with some very notable exceptions due to lobbying.
- elliekelly 6y ago
  It doesn't need to be a law passed by Congress. Congress need only pass a law authorizing the USPTO (or FTC, or FCC, or whoever) to promulgate a system that facilitates DMCA compliance while disincentivizing its abuse. Then the USPTO would set the rules and parameters and oversee compliance. That's how most modern regulations are written.
  - mr_spothawk 6y ago
    > It doesn't need to be a law passed by Congress. Then why should I (or anybody) be expected to follow it? And before you say "modern regulations" I'll point out that my position generally is that regulations instead of law are how we've gotten so deranged in the first place. Also, the money is fucked.
    - gmanley 6y ago
      Same reason you follow rules set by the FCC and don't create your own pirate radio. They have there own enforcement.
      - mr_spothawk 6y ago
        Eh... i don't have a pirate radio because i'm lazy, not because i'm afraid.
  - salawat 6y ago
    I'd say that does an end run around the process the Founders put in place for good reason. It was not specified in the Constitution that the Congress shall delegate the finer details of lawmaking to the Executive Branch in the form of Administrative Law. It said that legislative power is wielded specifically by the Congress. Given that judicial review takes as an input the intent Oof the Congress, it seems daft to leave the intent to question by not having the details worked out by the legislature. This has the practical upshot in disincentivizing unnecessary or frivolous lawmaking to boot. If instead of spending time trying to jam in notionary laws into an omnibus bill somewhere, a legislator had to come to terms with the how, not just the what, I'd wager we'd over time start to see a far morecohesive legal landscape begin to take shape.
NotACop182 6y ago
The problem is Company A has deep pockets person B doesn’t. If the amount is too small to file DMCA it wont change a thing. If it’s too high person B won’t be able to fight or put money in escrow. Sounds great and all but I don’t see a working solution to what I stated above.
nullc 6y ago
I think you've got the wrong balance. Copyright claimant should get their X back if there is no counter notice OR if a lawsuit is filed. (if the file a lawsuit that's enough cost to them). Accused should always get their funds back plus half of the alleged's fees if a lawsuit isn't filed, but they're sent back to the contact information set in the counter-notice-- so they are incentivized to make that information accurate. $X should also be substantial, at least equivalent to the cost of bringing a lawsuit. $Y should be nominal, just to discourage providing false information.