3 ms·

It provides an equally special incentive to comply with users; the safe harbor has two sides. It provides very nearly no incentive whatsoever to comply with us

by yew 13y ago

It provides an equally special incentive to comply with users; the safe harbor has two sides. It provides very nearly no incentive whatsoever to comply with users. What provisions it does provide are practically unenforceable due to absurdly high standards for users and absurdly low standards for 'content owners'. I don't care a whit for your interpretation of the law. Especially when your interpretation flies in the face of the text of the DMCA (see in particular sec 202 on standards for perjury, which differ significantly for notices and counter-notices). I care about results - and the results, across dozens of major content hosts, speak for themselves. The DMCA has not only failed to protect users and content creators who aren't 'content owners', it has also given rise to independent policing mechanisms modeled on and derived from it but with even fewer protections.

dragonwriter 13y ago
> I care about results The results are basically identical to the pre-DMCA situation except that the risk of monetary damages to content hosts is less -- most content hosts takedown material immediately on request by purported content owners to prevent lawsuits, and most content hosts don't care much about complaints from users (including counter notices) because the litigation threat is miniscule. The DMCA safe harbor provides a defense against litigation for content hosts who comply with notices and counter-notices, but it doesn't change the fact that, with or without the safe harbor, the only litigation threat content hosts are worried about is litigation by purported content owners, not litigation from users (because, in the first place, they already have an agreement with users, and content hosts are careful to construct such agreements to foreclose any litigation threat resulting from the host deciding not to host any particular content.) Any imbalance in the perjury provisions that makes counter-notice more risky is irrelevant, because the user-side safe harbor is irrelevant, because a safe harbor only matters when, without the safe harbor, there is a threat of litigation that matters. My point is, and remains, that the problem you are referring to in results goes far deeper than the DMCA safe harbor, and balance between the two sides in the safe harbor provisions don't matter, because only one side of the safe harbor has any meaning -- content hosts don't need a safe harbor against users. That being said, I'd support much stronger standards on the notice side, not for some completely pointless idea of balance, but because the practical results of false notices are the suppression of speech; for that reason, I'd propose creating the following standard for liability for material misrepresentation in takedown notices: Any material misrepresentation in a notice (whether knowing or not) would make the party filing the notice liable for actual damages to content hosts and/or users resulting from notice. Any material misrepresentation in a notice where the filing party either knew the representation was false, or reasonably should have known the representation was false, or cannot show by clear and convincing evidence that they had a reasonable basis to believe was true with high confidence, will also allow punitive damages. And the entire content of a notice should be under penalty of perjury. But none of this is about balance between notice and counter-notice, which -- aside from being irrelevant -- shouldn't even be a goal in the first place, its about what the standard needs to be given the that what is being created is a government-provided incentive to suppress speech.

by yew 13y ago

dragonwriter 13y ago

> I care about results The results are basically identical to the pre-DMCA situation except that the risk of monetary damages to content hosts is less -- most content hosts takedown material immediately on request by purported content owners to prevent lawsuits, and most content hosts don't care much about complaints from users (including counter notices) because the litigation threat is miniscule. The DMCA safe harbor provides a defense against litigation for content hosts who comply with notices and counter-notices, but it doesn't change the fact that, with or without the safe harbor, the only litigation threat content hosts are worried about is litigation by purported content owners, not litigation from users (because, in the first place, they already have an agreement with users, and content hosts are careful to construct such agreements to foreclose any litigation threat resulting from the host deciding not to host any particular content.) Any imbalance in the perjury provisions that makes counter-notice more risky is irrelevant, because the user-side safe harbor is irrelevant, because a safe harbor only matters when, without the safe harbor, there is a threat of litigation that matters. My point is, and remains, that the problem you are referring to in results goes far deeper than the DMCA safe harbor, and balance between the two sides in the safe harbor provisions don't matter, because only one side of the safe harbor has any meaning -- content hosts don't need a safe harbor against users. That being said, I'd support much stronger standards on the notice side, not for some completely pointless idea of balance, but because the practical results of false notices are the suppression of speech; for that reason, I'd propose creating the following standard for liability for material misrepresentation in takedown notices: Any material misrepresentation in a notice (whether knowing or not) would make the party filing the notice liable for actual damages to content hosts and/or users resulting from notice. Any material misrepresentation in a notice where the filing party either knew the representation was false, or reasonably should have known the representation was false, or cannot show by clear and convincing evidence that they had a reasonable basis to believe was true with high confidence, will also allow punitive damages. And the entire content of a notice should be under penalty of perjury. But none of this is about balance between notice and counter-notice, which -- aside from being irrelevant -- shouldn't even be a goal in the first place, its about what the standard needs to be given the that what is being created is a government-provided incentive to suppress speech.