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I really hope that DMCA at least be modified to add a requirement to submit a fee that can be recovered in case of success. Or maybe not recovered at all and co

I really hope that DMCA at least be modified to add a requirement to submit a fee that can be recovered in case of success. Or maybe not recovered at all and cover the cost of investigation. It might help combat the bogus claims. As for the real ones, that's should be part of the cost of doing business. But the current situation that it is almost zero cost will only encourage more bogus and vague claims.

bradley13 3y ago
The fee should be enough to be meaningful - say, $100 or so. If the claim turns out to be wrong, the fee should go to the accused party. If an organization files many claims that turn out to be false, they should be forbidden from filing further claims for a year, or face massive fines.
- WesolyKubeczek 3y ago
  If each one is $100 upfront for them and in my pocket whenever I prove them bogus, all I can say is, Bring it on!!!
ZoomerCretin 3y ago
The law is working exactly as intended. The copyright lobby is very powerful. If you look at the legislation being proposed since 2010, it has primarily been to strengthen the DMCA. Though Google, Reddit, Meta, Wikipedia, etc. were successful in organizing opposition to these bills, they have no incentive to lobby for the repeal of the DMCA.
zamadatix 3y ago
I'm not sure there is a fee which is both large enough it significantly deters bad claims while also being small enough to be different than saying nobody can afford to defend their works on the internet via DMCA given the scale. Even if you have 90% accuracy in claims if you have to put out 10,000 claims in a year that's 1 million you have to escrow with the expected loss of 100,000 despite rarely being wrong. And you may well need to do significantly more than 10,000 claims per year given the number of sites and users uploading and re-sharing content. If it were just a token value of 1 dollar or something then you're back to the largest corporations being able to file a million bogus complaints as the cost of doing business. Absent a balanced number this would ultimately turn into another debate about the place of the DMCA itself.
- FireBeyond 3y ago
  > with the expected loss of 100,000 despite rarely being wrong To those 10% you were absolutely wrong. Why should they suffer because you were "mostly right" with other people?
  - zamadatix 3y ago
    I don't think you get out of this with 0 suffering for everyone. That'd require some utopian method of figuring all of this out completely automatically with no errors for free. It's just not a realistic bar to measure either side on. As for amount of suffering an actual DMCA counter notice is an extremely easy thing to provide. What sites like e.g. YouTube do instead via backdoor agreements with IP holders outside the regulatory structure is where the real inconvenience comes from. That said, I wouldn't mind a bit more shift in general to make things slightly more difficult for copyright owners though. Just not as major a one as saying 100% of claims need to be valid from the get go or it's not viable for copyright holders.
    - FireBeyond 3y ago
      Certainly, but false positives here mean actual infringement of a person's rights to protect someone else from potential infringement. I'm not sure how that is justifiable.
- dclowd9901 3y ago
  I'm pretty sure $100 per claimed violation is enough to 1) keep large companies from continuing to splattershot claims against sites and 2) small enough that it _shouldn't_ hurt smaller orgs or even individuals who probably have something near 100% claim success rates, if they do manual takedowns. Again, remembering they recover their "deposit" if the claim was successful.
  - zamadatix 3y ago
    That's a fair opinion and I'd be supportive of trying it if everyone could agree on such a number. I'm just less optimistic it'll work out but status quo isn't all that great either so trying something people think could work would be better than doing nothing in my book, despite my doubt on it. Keep in mind even if you have and ideal 100% success rate on claims, recovering 100% of the deposits, it's still going to be thousands and thousands of dollars which used to be liquid now relegated to holding up the revolving door claims processing fees. Anything less than 100% just starts to make it an actual money pit instead of a financial annoyance.
loceng 3y ago
I would like the same thing for international domain dispute process. I believe currently it's a $1000 non-refundable fee to submit a domain claim, e.g. you believe someone else acquired a domain knowing you owned the copyright, and then try to take it from you without having to buy it from you - whether it is or isn't for sale. $1000 cost + cost of whatever a bad-unethical lawyer charges to try to steal a domain doesn't cover the costs of time spent of the person you're falsely accusing - regardless if they hired a lawyer to get a proper legal defense - making their unrecoverable costs even higher - a claim submitted with no evidence, stuffed with repeated non-sense garbage that should have automatically been denied. If I wasn't dealing with other shit then I would have filed a complaint against the lawyer in the European country who initiated the wrongful claim-attack-theft attempt.
- andersa 3y ago
  Wait, what? Domains can be stolen?
  - nadermx 3y ago
    In some very special cases, yes, https://www.sfgate.com/news/article/Sex-com-A-URL-All-Crime-And-No-Sex-3306551.php https://www.sfgate.com/news/article/Sex-com-A-URL-All-Crime-.... But I assume parent comment is referring to reverse domain hijacking, which is a UDRP process, related to trademark not copyright.
    - loceng 3y ago
      Right, I misspoke saying copyright.
neilv 3y ago
To a small-fry person having their copyright violated, having to pay an upfront fee/deposit for each violating site could be onerous. If we're going to go to filing fees/deposits, how about make the remedy be a fast-track way for the violated person to seek damages, not just play takedown whack-a-mole?
- killjoywashere 3y ago
  There are ways to set up classification schemes for fee payments: a small fry has to pay a $1. A big fry has to pay an escalating value. Sort of like truckers have to keep much higher insurance policy values than your typical personal auto driver.
- margalabargala 3y ago
  A one dollar fee would be entirely affordable to a "small fry person", while making automated "report anything the same color as our copyright" abuse untenable.
- ryandrake 3y ago
  Along with the good suggestions by the other replies, let's also take into account actual DMCA takedown activity, and make sure we are not optimizing for an edge case. I would guess that "rich company spamming bogus notices" is far and away the most frequent case, followed maybe by "rich company filing legitimate notices" followed in the far distance by "small fry filing a legitimate notice." There are probably multiple orders of magnitude more bogus notices from companies than legit ones from small fries. The DMCA is a weapon that mainly large, rich companies use to beat up mainly small, relatively powerless end-users. That's what needs to be corrected. I'd also argue that a large portion of the US legal system is set up to facilitate this "big&rich beating up on small&poor" behavior, but that's a topic for a different day.
  - neilv 3y ago
    This sounds like the DMCA is solely a harm to mitigate? Is using the DMCA to legitimately defend the copyrights of small-fries too much of an edge case?
jorams 3y ago
I think it makes more sense to disqualify abusers from the entire takedown system. The DMCA takedown process takes a guilty-until-proven-otherwise approach, and companies like Markscan from the article can clearly not be trusted with that power. After maybe 3 false takedowns the receiver should be allowed to assume anything they send is bullshit. There should also be consequences for copyright owners choosing to be represented by a large number of such abusers, but that's a lot more complicated and would require more due process.
- GartzenDeHaes 3y ago
  Why do copyright holders get due process but not accused infringers?
  - Nifty3929 3y ago
    Because they are not being prosecuted for a crime, and are not being subject to legal penalties. They are not facing jail time or a legal judgement. The platform just takes them down. I’m not saying this is right, just that this is the reason.
    - indymike 3y ago
      False. A takedown can be very costly in terms of lost income for the victim of the false takedown. It is a legally prescribed process.
      - Nifty3929 3y ago
        I didn't say it wouldn't be costly - I'm sure in many cases it is. But it is not a legal process - the platform just removes your content. Just because a law requires platforms to do something, does not mean this is a legal process or proceeding. Just like if a law requires business to enforce mask-wearing, and then I get kicked out for not wearing a mask, that was not a legal proceeding. They just kicked me out.
      - Qwertious 3y ago
neilv 3y ago
Maybe the party making the DMCA claim must provide verifiable identifying info for themselves, sufficient to locate and prosecute them, if they're suspected of knowingly or negligently making a false claim.
deleted 3y ago
[deleted]

bradley13 3y ago

The fee should be enough to be meaningful - say, $100 or so. If the claim turns out to be wrong, the fee should go to the accused party. If an organization files many claims that turn out to be false, they should be forbidden from filing further claims for a year, or face massive fines.

WesolyKubeczek 3y ago
If each one is $100 upfront for them and in my pocket whenever I prove them bogus, all I can say is, Bring it on!!!

ZoomerCretin 3y ago

The law is working exactly as intended. The copyright lobby is very powerful. If you look at the legislation being proposed since 2010, it has primarily been to strengthen the DMCA. Though Google, Reddit, Meta, Wikipedia, etc. were successful in organizing opposition to these bills, they have no incentive to lobby for the repeal of the DMCA.

zamadatix 3y ago

I'm not sure there is a fee which is both large enough it significantly deters bad claims while also being small enough to be different than saying nobody can afford to defend their works on the internet via DMCA given the scale. Even if you have 90% accuracy in claims if you have to put out 10,000 claims in a year that's 1 million you have to escrow with the expected loss of 100,000 despite rarely being wrong. And you may well need to do significantly more than 10,000 claims per year given the number of sites and users uploading and re-sharing content. If it were just a token value of 1 dollar or something then you're back to the largest corporations being able to file a million bogus complaints as the cost of doing business. Absent a balanced number this would ultimately turn into another debate about the place of the DMCA itself.

FireBeyond 3y ago
> with the expected loss of 100,000 despite rarely being wrong To those 10% you were absolutely wrong. Why should they suffer because you were "mostly right" with other people?
- zamadatix 3y ago
  I don't think you get out of this with 0 suffering for everyone. That'd require some utopian method of figuring all of this out completely automatically with no errors for free. It's just not a realistic bar to measure either side on. As for amount of suffering an actual DMCA counter notice is an extremely easy thing to provide. What sites like e.g. YouTube do instead via backdoor agreements with IP holders outside the regulatory structure is where the real inconvenience comes from. That said, I wouldn't mind a bit more shift in general to make things slightly more difficult for copyright owners though. Just not as major a one as saying 100% of claims need to be valid from the get go or it's not viable for copyright holders.
  - FireBeyond 3y ago
    Certainly, but false positives here mean actual infringement of a person's rights to protect someone else from potential infringement. I'm not sure how that is justifiable.
dclowd9901 3y ago
I'm pretty sure $100 per claimed violation is enough to 1) keep large companies from continuing to splattershot claims against sites and 2) small enough that it _shouldn't_ hurt smaller orgs or even individuals who probably have something near 100% claim success rates, if they do manual takedowns. Again, remembering they recover their "deposit" if the claim was successful.
- zamadatix 3y ago
  That's a fair opinion and I'd be supportive of trying it if everyone could agree on such a number. I'm just less optimistic it'll work out but status quo isn't all that great either so trying something people think could work would be better than doing nothing in my book, despite my doubt on it. Keep in mind even if you have and ideal 100% success rate on claims, recovering 100% of the deposits, it's still going to be thousands and thousands of dollars which used to be liquid now relegated to holding up the revolving door claims processing fees. Anything less than 100% just starts to make it an actual money pit instead of a financial annoyance.

loceng 3y ago

I would like the same thing for international domain dispute process. I believe currently it's a $1000 non-refundable fee to submit a domain claim, e.g. you believe someone else acquired a domain knowing you owned the copyright, and then try to take it from you without having to buy it from you - whether it is or isn't for sale. $1000 cost + cost of whatever a bad-unethical lawyer charges to try to steal a domain doesn't cover the costs of time spent of the person you're falsely accusing - regardless if they hired a lawyer to get a proper legal defense - making their unrecoverable costs even higher - a claim submitted with no evidence, stuffed with repeated non-sense garbage that should have automatically been denied. If I wasn't dealing with other shit then I would have filed a complaint against the lawyer in the European country who initiated the wrongful claim-attack-theft attempt.

andersa 3y ago
Wait, what? Domains can be stolen?
- nadermx 3y ago
  In some very special cases, yes, https://www.sfgate.com/news/article/Sex-com-A-URL-All-Crime-And-No-Sex-3306551.php https://www.sfgate.com/news/article/Sex-com-A-URL-All-Crime-.... But I assume parent comment is referring to reverse domain hijacking, which is a UDRP process, related to trademark not copyright.
  - loceng 3y ago
    Right, I misspoke saying copyright.

neilv 3y ago

To a small-fry person having their copyright violated, having to pay an upfront fee/deposit for each violating site could be onerous. If we're going to go to filing fees/deposits, how about make the remedy be a fast-track way for the violated person to seek damages, not just play takedown whack-a-mole?

killjoywashere 3y ago
There are ways to set up classification schemes for fee payments: a small fry has to pay a $1. A big fry has to pay an escalating value. Sort of like truckers have to keep much higher insurance policy values than your typical personal auto driver.
margalabargala 3y ago
A one dollar fee would be entirely affordable to a "small fry person", while making automated "report anything the same color as our copyright" abuse untenable.
ryandrake 3y ago
Along with the good suggestions by the other replies, let's also take into account actual DMCA takedown activity, and make sure we are not optimizing for an edge case. I would guess that "rich company spamming bogus notices" is far and away the most frequent case, followed maybe by "rich company filing legitimate notices" followed in the far distance by "small fry filing a legitimate notice." There are probably multiple orders of magnitude more bogus notices from companies than legit ones from small fries. The DMCA is a weapon that mainly large, rich companies use to beat up mainly small, relatively powerless end-users. That's what needs to be corrected. I'd also argue that a large portion of the US legal system is set up to facilitate this "big&rich beating up on small&poor" behavior, but that's a topic for a different day.
- neilv 3y ago
  This sounds like the DMCA is solely a harm to mitigate? Is using the DMCA to legitimately defend the copyrights of small-fries too much of an edge case?

jorams 3y ago

I think it makes more sense to disqualify abusers from the entire takedown system. The DMCA takedown process takes a guilty-until-proven-otherwise approach, and companies like Markscan from the article can clearly not be trusted with that power. After maybe 3 false takedowns the receiver should be allowed to assume anything they send is bullshit. There should also be consequences for copyright owners choosing to be represented by a large number of such abusers, but that's a lot more complicated and would require more due process.

GartzenDeHaes 3y ago
Why do copyright holders get due process but not accused infringers?
- Nifty3929 3y ago
  Because they are not being prosecuted for a crime, and are not being subject to legal penalties. They are not facing jail time or a legal judgement. The platform just takes them down. I’m not saying this is right, just that this is the reason.
  - indymike 3y ago
    False. A takedown can be very costly in terms of lost income for the victim of the false takedown. It is a legally prescribed process.
    - Nifty3929 3y ago
      I didn't say it wouldn't be costly - I'm sure in many cases it is. But it is not a legal process - the platform just removes your content. Just because a law requires platforms to do something, does not mean this is a legal process or proceeding. Just like if a law requires business to enforce mask-wearing, and then I get kicked out for not wearing a mask, that was not a legal proceeding. They just kicked me out.
    - Qwertious 3y ago

neilv 3y ago

Maybe the party making the DMCA claim must provide verifiable identifying info for themselves, sufficient to locate and prosecute them, if they're suspected of knowingly or negligently making a false claim.

deleted 3y ago

[deleted]