3 ms·

The problem is the other side is often judgement proof. And you might not know who the other side until you get a counter-notice with their contact information.

by ikeboy 6y ago

wtallis 6y ago
"Judgement proof" usually just means the plaintiff/copyright holder cannot make money off the defendant/infringer. But the infringer is still going to suffer financially. Having an expectation that you'll be driven into bankruptcy if you file a false counter-notice would probably serve as extremely effective deterrent against doing so, especially when it costs real money to file that false counter-notice. Judgement-proof infringers may be a serious problem under the current system, but I think that problem would be more or less eliminated by requiring participants in the DMCA takedown procedures to have skin in the game.
- ikeboy 6y ago
  Why would there be such an expectation? What incentive would a copyright holder have to sue that they don't have under the current system?
  - wtallis 6y ago
    > What incentive would a copyright holder have to sue that they don't have under the current system? Right now, a copyright holder who sends a half-assed takedown notice has no incentive to put their money where their mouth is. Bur if they have to make a financial investment in order to file that notice and their money is forfeit if they don't follow through with a lawsuit when the notice is contested, then they obviously now have an incentive to follow through with a lawsuit. Especially if dropping their allegations of infringement now means the intended victim of the half-assed takedown notice gets part of that filing fee to compensate them for their troubles and having their work temporarily made unavailable.
    - ikeboy 6y ago
      The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. Regardless, filing a suit costs more money than they were proposing be put up in escrow. So at best it would be a weak incentive.
      - wtallis 6y ago
        > The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. ... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. > Regardless, filing a suit costs more money than they were proposing be put up in escrow. What are you basing this on? The comment you're referring to very deliberately did not use specific numbers.
        ikeboy 6y ago
        >... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. This wasn't specified in the original post. They said the money gets forfeited to LOC, not recoverable. >What are you basing this on? The comment you're referring to very deliberately did not use specific numbers. In response to questions, they gave the figure of $100. If the number has to be high enough to be a significant incentive to file suit, then it would also be too high for use as the DMCA intended. People would just file lawsuits instead of sending notices at all.
        wtallis 6y ago
        > They said the money gets forfeited to LOC, not recoverable. That was not explicitly stated, and the more reasonable interpretation is that the money would be considered as part of the legal fees for the action culminating in the lawsuit, and would therefore be eligible for recovery absent specific legal provisions excluding that possibility. > People would just file lawsuits instead of sending notices at all. The DMCA notice procedure would continue to serve the original purpose of serving as an expedited way to get infringing content removed, thereby limiting the damage done while waiting for room on the court's docket. And in cases where the infringer knows they're guilty and doesn't want to contest the takedown, a court would still not have to get involved (except perhaps for being part of the escrow system, but that doesn't waste the judge's time).

The problem is the other side is often judgement proof. And you might not know who the other side until you get a counter-notice with their contact information.

by ikeboy 6y ago

The problem is the other side is often judgement proof. And you might not know who the other side until you get a counter-notice with their contact information.

wtallis 6y ago

"Judgement proof" usually just means the plaintiff/copyright holder cannot make money off the defendant/infringer. But the infringer is still going to suffer financially. Having an expectation that you'll be driven into bankruptcy if you file a false counter-notice would probably serve as extremely effective deterrent against doing so, especially when it costs real money to file that false counter-notice. Judgement-proof infringers may be a serious problem under the current system, but I think that problem would be more or less eliminated by requiring participants in the DMCA takedown procedures to have skin in the game.

ikeboy 6y ago
Why would there be such an expectation? What incentive would a copyright holder have to sue that they don't have under the current system?
- wtallis 6y ago
  > What incentive would a copyright holder have to sue that they don't have under the current system? Right now, a copyright holder who sends a half-assed takedown notice has no incentive to put their money where their mouth is. Bur if they have to make a financial investment in order to file that notice and their money is forfeit if they don't follow through with a lawsuit when the notice is contested, then they obviously now have an incentive to follow through with a lawsuit. Especially if dropping their allegations of infringement now means the intended victim of the half-assed takedown notice gets part of that filing fee to compensate them for their troubles and having their work temporarily made unavailable.
  - ikeboy 6y ago
    The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. Regardless, filing a suit costs more money than they were proposing be put up in escrow. So at best it would be a weak incentive.
    - wtallis 6y ago
      > The above proposal said the money was forfeited as soon as a counternotice is filed. Hence, no incentive to file a lawsuit. ... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. > Regardless, filing a suit costs more money than they were proposing be put up in escrow. What are you basing this on? The comment you're referring to very deliberately did not use specific numbers.
      - ikeboy 6y ago
        >... except for the fact that a lawsuit allows you to recover that fee, and more damages—if you have a case to begin with. It's a recoverable cost, not a sunk cost. This wasn't specified in the original post. They said the money gets forfeited to LOC, not recoverable. >What are you basing this on? The comment you're referring to very deliberately did not use specific numbers. In response to questions, they gave the figure of $100. If the number has to be high enough to be a significant incentive to file suit, then it would also be too high for use as the DMCA intended. People would just file lawsuits instead of sending notices at all.
        wtallis 6y ago
        > They said the money gets forfeited to LOC, not recoverable. That was not explicitly stated, and the more reasonable interpretation is that the money would be considered as part of the legal fees for the action culminating in the lawsuit, and would therefore be eligible for recovery absent specific legal provisions excluding that possibility. > People would just file lawsuits instead of sending notices at all. The DMCA notice procedure would continue to serve the original purpose of serving as an expedited way to get infringing content removed, thereby limiting the damage done while waiting for room on the court's docket. And in cases where the infringer knows they're guilty and doesn't want to contest the takedown, a court would still not have to get involved (except perhaps for being part of the escrow system, but that doesn't waste the judge's time).