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I really wish our system had some kind of financial handicap when it came to access to the legal system. Weaponizing the legal system to bankrupt people that wo

by teeray 3y ago

I really wish our system had some kind of financial handicap when it came to access to the legal system. Weaponizing the legal system to bankrupt people that would be found Not Guilty shouldn't be possible.

kelseyfrog 3y ago
I always wondered what would happen if litigants and defendants could contribute to a common legal fund which would equally fund their attorneys. It would at maximum make litigation twice as expensive which may be worth it alone.
- theultdev 3y ago
  If it's twice as expensive then the defendants would run out of money sooner right? You would have to somehow set a limit of legal expenses, which seems... difficult. You would have to win to get the common fund, you may not get that far if you have to pay into the fund and amount a defense.
  - kelseyfrog 3y ago
    There might be a miscommunication. The litigants and defendants would not be compelled to contribute equal amounts. Just the disbursement would be equal.
    - theultdev 3y ago
      Then why would the litigants contribute in the first place? If nothing compels them to, they won't, so effectively the status quo.
      - kelseyfrog 3y ago
        What I'm hearing is that it solves the problem of Nintendo being to outspend the defendant. If Nintendo brings a lawsuit and spends zero dollars on court cost, it should be rather easy for the defense to also contribute zero and the lawsuit is avoided. Problem solved.
        theultdev 3y ago
        And if Nintendo spends $10 million dollars? And Yuzu spends $25,000 and maybe wins the first case but runs out of money during the appeal and defaults judgment. Nintendo gets the pot because they won right? As I pointed out to another user, this reverses the damage if they win, but does not solve the problem of preventing them from being able to win. Now if you make it where if you want to spend $5 on lawyer fees, you have to loan $5 to the other side and if the other side wins they don't have to pay it back, that may work.
        rcxdude 3y ago
        I think the proposal is not "each side contributes to a pot and the winner takes it", it's "if one side wants to spend 10mil on a case and the other side puts in 25k, then each side has 5mil and 12.5k to spend on legal fees"
        theultdev 3y ago
        Ah okay, if that's the case then yeah totally in support for that. That's essentially what I was suggesting with having to loan the opposing team the same amount of money you spend.
        kelseyfrog 3y ago
        Thank you. Correct, there is not "pot" where the winner takes all. The fund is simply and always split 50/50 towards lawyers and fees.
      - deleted 3y ago
        [deleted]
- syockit 3y ago
  It would be harder for big corpo to sue laypeople, but at the same time harder for laypeople to sue corpo.
  - kelseyfrog 3y ago
    Would fewer, fairer lawsuits be a win?
Solvency 3y ago
Easy. The defendant and plaintiffs each hire and pay for lawyers they can or are willing to afford. But all of that money goes into a prize pot, which gets distributed based on who wins the case. This would ensure either Nintendo doesn't try to financially grind out a poor small company because the loss would not be worth it to them.
- theultdev 3y ago
  That doesn't solve grinding out the small company, though it does reverse the damage if they don't get ground out. The problem is not the end payout, it's the base cost can't be afforded along the way. One side can keep appealing and escalating, the other can't pay for the cases themselves. They may not get far enough to win the pool. You would have to have the lawyers work pro bono or some common legal fund pay for it until the case is won to get the pool. As I pitched to another user, how about: > for lawsuits, if you want to spend $5 on lawyer fees, you have to loan $5 to the other side. > if the other side wins they don't have to pay back the loan.
  - Panzer04 3y ago
    The problem with that is you're ruined if you lose the court case. Few people would be willing to take on such a massive risk.
    - DANmode 3y ago
      Better be sure of the veracity your case before taking the court's time.
jrockway 3y ago
The legal system has sort of recognized this as a problem, which is why many states have anti-SLAPP lawsuits. Unfortunately, I don't think this strictly falls under the definition of "public participation", so there is no protection available. (And, big companies just try to sue you in federal court or states with no anti-SLAPP lawsuits. So anti-SLAPP is not the big victory it should have been.)
- kmeisthax 3y ago
  An anti-SLAPP law usually works by giving you a special motion that lets you say "hey, I think this is a SLAPP lawsuit", which basically gives you access to fee shifting (making the loser pay the winner's legal fees). Copyright already has this built in. Which is great news... for Nintendo. The problem that Nintendo is citing in their lawsuit is the fact that Yuzu ships Switch common keys. For the purpose of DMCA 1201, this is a smoking gun[0]. There isn't really a good legal argument for why emulators should be allowed to ship decryption keys, or at least, the EFF refused to come up with one when Dolphin asked for legal advice on this point a while ago. So if you go to court and provide a completely legally baseless argument, Nintendo wins, and then they move for fee shifting, which means they get to prosecute the case for free[1]. [0] While it is true that the scope of DMCA 1201 is far wider than just encryption keys, in this case, Nintendo has only cited the keys being in the emulator and the fact that Yuzu is really useful for running pirated software, which is "good enough". [1] In practice, it's more "for cheap" than "for free", because there's specific rules about how much you're allowed to fee shift, a whole bunch of stuff about 'lodestar amounts', etc.
  - belthesar 3y ago
    That's the thing though, Yuzu doesn't ship with the common keys. Yuzu's quick start guide provides clear instructions for how to root a physical switch and dump the keys from the device, but it doesn't ship with the keys itself. What Nintendo is alleging is that providing the instructions to dump the keys is equivalent to providing them itself.
    - kmeisthax 3y ago
causality0 3y ago
Losing a lawsuit should make you liable for the opponent's legal funds up to the same amount you spent on yours.
- teeray 3y ago
  Yeah, but when cases take years you can run into cash flow issues, even if you might ultimately prevail.
- scarby2 3y ago
  this is how it works in a whole lot of places other than the USA
- deleted 3y ago
  [deleted]
itsoktocry 3y ago
>Weaponizing the legal system to bankrupt people that would be found Not Guilty shouldn't be possible. They could open source and distribute the code in a decentralized manner. People could download, use and work on the software freely. The Pirate Bay is still going, based on these principles. But if you're going to run a commercial enterprise based on what can at least be construed as enabling piracy, you're playing with fire and companies have the right to protect their IP in court.
- GabrielTFS 3y ago
  Yuzu is open source though ?? I don't get what you're saying. I should also add the previous commercial (as in, sold in shelves) emulators competing with current-gen consoles have been previously declared legal and fair competition (see e.g. Sony v. Connectix, with Connectix emulating the PlayStation)

by teeray 3y ago

kelseyfrog 3y ago

I always wondered what would happen if litigants and defendants could contribute to a common legal fund which would equally fund their attorneys. It would at maximum make litigation twice as expensive which may be worth it alone.

theultdev 3y ago
If it's twice as expensive then the defendants would run out of money sooner right? You would have to somehow set a limit of legal expenses, which seems... difficult. You would have to win to get the common fund, you may not get that far if you have to pay into the fund and amount a defense.
- kelseyfrog 3y ago
  There might be a miscommunication. The litigants and defendants would not be compelled to contribute equal amounts. Just the disbursement would be equal.
  - theultdev 3y ago
    Then why would the litigants contribute in the first place? If nothing compels them to, they won't, so effectively the status quo.
    - kelseyfrog 3y ago
      What I'm hearing is that it solves the problem of Nintendo being to outspend the defendant. If Nintendo brings a lawsuit and spends zero dollars on court cost, it should be rather easy for the defense to also contribute zero and the lawsuit is avoided. Problem solved.
      - theultdev 3y ago
        And if Nintendo spends $10 million dollars? And Yuzu spends $25,000 and maybe wins the first case but runs out of money during the appeal and defaults judgment. Nintendo gets the pot because they won right? As I pointed out to another user, this reverses the damage if they win, but does not solve the problem of preventing them from being able to win. Now if you make it where if you want to spend $5 on lawyer fees, you have to loan $5 to the other side and if the other side wins they don't have to pay it back, that may work.
        rcxdude 3y ago
        I think the proposal is not "each side contributes to a pot and the winner takes it", it's "if one side wants to spend 10mil on a case and the other side puts in 25k, then each side has 5mil and 12.5k to spend on legal fees"
        theultdev 3y ago
        Ah okay, if that's the case then yeah totally in support for that. That's essentially what I was suggesting with having to loan the opposing team the same amount of money you spend.
        kelseyfrog 3y ago
        Thank you. Correct, there is not "pot" where the winner takes all. The fund is simply and always split 50/50 towards lawyers and fees.
    - deleted 3y ago
      [deleted]
syockit 3y ago
It would be harder for big corpo to sue laypeople, but at the same time harder for laypeople to sue corpo.
- kelseyfrog 3y ago
  Would fewer, fairer lawsuits be a win?

Solvency 3y ago

Easy. The defendant and plaintiffs each hire and pay for lawyers they can or are willing to afford. But all of that money goes into a prize pot, which gets distributed based on who wins the case. This would ensure either Nintendo doesn't try to financially grind out a poor small company because the loss would not be worth it to them.

theultdev 3y ago
That doesn't solve grinding out the small company, though it does reverse the damage if they don't get ground out. The problem is not the end payout, it's the base cost can't be afforded along the way. One side can keep appealing and escalating, the other can't pay for the cases themselves. They may not get far enough to win the pool. You would have to have the lawyers work pro bono or some common legal fund pay for it until the case is won to get the pool. As I pitched to another user, how about: > for lawsuits, if you want to spend $5 on lawyer fees, you have to loan $5 to the other side. > if the other side wins they don't have to pay back the loan.
- Panzer04 3y ago
  The problem with that is you're ruined if you lose the court case. Few people would be willing to take on such a massive risk.
  - DANmode 3y ago
    Better be sure of the veracity your case before taking the court's time.

jrockway 3y ago

The legal system has sort of recognized this as a problem, which is why many states have anti-SLAPP lawsuits. Unfortunately, I don't think this strictly falls under the definition of "public participation", so there is no protection available. (And, big companies just try to sue you in federal court or states with no anti-SLAPP lawsuits. So anti-SLAPP is not the big victory it should have been.)

kmeisthax 3y ago
An anti-SLAPP law usually works by giving you a special motion that lets you say "hey, I think this is a SLAPP lawsuit", which basically gives you access to fee shifting (making the loser pay the winner's legal fees). Copyright already has this built in. Which is great news... for Nintendo. The problem that Nintendo is citing in their lawsuit is the fact that Yuzu ships Switch common keys. For the purpose of DMCA 1201, this is a smoking gun[0]. There isn't really a good legal argument for why emulators should be allowed to ship decryption keys, or at least, the EFF refused to come up with one when Dolphin asked for legal advice on this point a while ago. So if you go to court and provide a completely legally baseless argument, Nintendo wins, and then they move for fee shifting, which means they get to prosecute the case for free[1]. [0] While it is true that the scope of DMCA 1201 is far wider than just encryption keys, in this case, Nintendo has only cited the keys being in the emulator and the fact that Yuzu is really useful for running pirated software, which is "good enough". [1] In practice, it's more "for cheap" than "for free", because there's specific rules about how much you're allowed to fee shift, a whole bunch of stuff about 'lodestar amounts', etc.
- belthesar 3y ago
  That's the thing though, Yuzu doesn't ship with the common keys. Yuzu's quick start guide provides clear instructions for how to root a physical switch and dump the keys from the device, but it doesn't ship with the keys itself. What Nintendo is alleging is that providing the instructions to dump the keys is equivalent to providing them itself.
  - kmeisthax 3y ago

causality0 3y ago

Losing a lawsuit should make you liable for the opponent's legal funds up to the same amount you spent on yours.

teeray 3y ago
Yeah, but when cases take years you can run into cash flow issues, even if you might ultimately prevail.
scarby2 3y ago
this is how it works in a whole lot of places other than the USA
deleted 3y ago
[deleted]

itsoktocry 3y ago

>Weaponizing the legal system to bankrupt people that would be found Not Guilty shouldn't be possible. They could open source and distribute the code in a decentralized manner. People could download, use and work on the software freely. The Pirate Bay is still going, based on these principles. But if you're going to run a commercial enterprise based on what can at least be construed as enabling piracy, you're playing with fire and companies have the right to protect their IP in court.

GabrielTFS 3y ago
Yuzu is open source though ?? I don't get what you're saying. I should also add the previous commercial (as in, sold in shelves) emulators competing with current-gen consoles have been previously declared legal and fair competition (see e.g. Sony v. Connectix, with Connectix emulating the PlayStation)