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But what are the 'actual damages' in this case, it would be hard to argue a monetary damage to Stack Exchange. So the most you could 'win' from CipherCloud for

by analog 13y ago

But what are the 'actual damages' in this case, it would be hard to argue a monetary damage to Stack Exchange. So the most you could 'win' from CipherCloud for their abuse would be your legal costs. Hard to justify taking that action.

DannyBee 13y ago
Yes, you would get some nominal damages, plus any actual loss you could prove (IE the money of the people who spent time processing your DMCA request, plus how much you would have earned from ads on the post) or, and if they did it repeatedly, you may get something more (Punitive damages are rare in contract law, but possible). Look, as much as I don't like it, this is a tradeoff. On one side, you have the fact that websites like this would normally be liable for everything they publish. DMCA says "we'll fix that for you", the cost being "if you want safe harbor, and someone with a good faith belief sends a takedown notice, you honor it". If StackExchange really believed the material was non-infringing, they could always ignore the DMCA takedown, and force CipherCloud to sue them. They didn't choose to take that risk. Newspapers have the same issue, FWIW: They get threatened all the time by bad actors (and not just for defamation of public figures, which the are mostly protected from). They just often choose to take the risk and force bad actors to sue them. It's not at all clear what you think the solution is. If you institute harsh penalties for filing "bad" DMCA requests, all that would happen would be large numbers of lawsuits over DMCA requests, bad or good, because it would likely be profitable. You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose? They wouldn't have to win many suits to make money off it. If you have a good solution, i'd love to hear it :) I realize how odd this sounds, and i really do hate the way content companies/et al abuse the DMCA process, but one doesn't need to look very hard at history to see what lawyers in general will do if you make it profitable (see the history of rule 11 sanctions, particularly, the period from 1983 to 1993, or you know, recent prop 65 litigation, resulting in everything in the world having "the state of California believes this may cause cancer" labels on it ).
- analog 13y ago
  Oh I don't have a solution, was just pointing out how the penalties for DMCA abuses end up not being enforced. I actually agree that DMCA takedown notices are surprisingly efficient.
- AnthonyMouse 13y ago
  >You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose? Money? Time? It wouldn't make any sense for them to litigate the cases they would obviously lose when they could choose the subset of cases where the take down issuer clearly has no copyright in the material in question -- which is the whole idea. You're also giving the money to the wrong party. It doesn't make any sense to give YouTube or Tumblr the right to sue for bad take downs, if they thought they were bad they could just not execute them. The right for redress should be for the user who posted the material, not the intermediary. Which solves your problem with torrent sites filing frivolous claims. Do you honestly think release groups are going to get into the business of filing frivolous lawsuits against content owners? As soon as they identified themselves and consented to jurisdiction they would be counter-sued for infringement or arrested.
  - tptacek 13y ago
    You're not following his reasoning to its conclusion. The people who run Isohunt surely don't want to spend their time writing court filings. But they'd be sitting on top of a mountain of potential claims, which would prove lucrative if even a tiny percentage resulted in damages. Unscrupulous law firms would notice and send Isohunt offers; at some point, it would become irrational of Isohunt not to accept one of them.
    - DannyBee 13y ago
      Right. Think of prenda law, just on the other side. It still wouldn't be a good thing, even if we happen to like the targets.
    - AnthonyMouse 13y ago

by analog 13y ago

DannyBee 13y ago

Yes, you would get some nominal damages, plus any actual loss you could prove (IE the money of the people who spent time processing your DMCA request, plus how much you would have earned from ads on the post) or, and if they did it repeatedly, you may get something more (Punitive damages are rare in contract law, but possible). Look, as much as I don't like it, this is a tradeoff. On one side, you have the fact that websites like this would normally be liable for everything they publish. DMCA says "we'll fix that for you", the cost being "if you want safe harbor, and someone with a good faith belief sends a takedown notice, you honor it". If StackExchange really believed the material was non-infringing, they could always ignore the DMCA takedown, and force CipherCloud to sue them. They didn't choose to take that risk. Newspapers have the same issue, FWIW: They get threatened all the time by bad actors (and not just for defamation of public figures, which the are mostly protected from). They just often choose to take the risk and force bad actors to sue them. It's not at all clear what you think the solution is. If you institute harsh penalties for filing "bad" DMCA requests, all that would happen would be large numbers of lawsuits over DMCA requests, bad or good, because it would likely be profitable. You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose? They wouldn't have to win many suits to make money off it. If you have a good solution, i'd love to hear it :) I realize how odd this sounds, and i really do hate the way content companies/et al abuse the DMCA process, but one doesn't need to look very hard at history to see what lawyers in general will do if you make it profitable (see the history of rule 11 sanctions, particularly, the period from 1983 to 1993, or you know, recent prop 65 litigation, resulting in everything in the world having "the state of California believes this may cause cancer" labels on it ).

analog 13y ago
Oh I don't have a solution, was just pointing out how the penalties for DMCA abuses end up not being enforced. I actually agree that DMCA takedown notices are surprisingly efficient.
AnthonyMouse 13y ago
>You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose? Money? Time? It wouldn't make any sense for them to litigate the cases they would obviously lose when they could choose the subset of cases where the take down issuer clearly has no copyright in the material in question -- which is the whole idea. You're also giving the money to the wrong party. It doesn't make any sense to give YouTube or Tumblr the right to sue for bad take downs, if they thought they were bad they could just not execute them. The right for redress should be for the user who posted the material, not the intermediary. Which solves your problem with torrent sites filing frivolous claims. Do you honestly think release groups are going to get into the business of filing frivolous lawsuits against content owners? As soon as they identified themselves and consented to jurisdiction they would be counter-sued for infringement or arrested.
- tptacek 13y ago
  You're not following his reasoning to its conclusion. The people who run Isohunt surely don't want to spend their time writing court filings. But they'd be sitting on top of a mountain of potential claims, which would prove lucrative if even a tiny percentage resulted in damages. Unscrupulous law firms would notice and send Isohunt offers; at some point, it would become irrational of Isohunt not to accept one of them.
  - DannyBee 13y ago
    Right. Think of prenda law, just on the other side. It still wouldn't be a good thing, even if we happen to like the targets.
  - AnthonyMouse 13y ago