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elliekelly

I wonder if a system like this could work to prevent abuse:

- Alleged copyright owners pay $X to file a DMCA notice

- Accused copyright infringers pay $Y to file a counter-notice

- Funds are held in escrow

- If the accused doesn't file a counter-notice within 10 days the copyright owner gets their $X back

- If a counter-notice is filed and the alleged copyright owner doesn't file suit within 90 days, no matter the reason, the accused infringer gets their $Y back.

- The pool of remaining funds is first used to offset the website's cost of credit card transactions for collecting filing fees and then any additional funds go to the Library of Congress.

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I think you've got the wrong balance. Copyright claimant should get their X back if there is no counter notice OR if a lawsuit is filed. (if the file a lawsuit that's enough cost to them).

Accused should always get their funds back plus half of the alleged's fees if a lawsuit isn't filed, but they're sent back to the contact information set in the counter-notice-- so they are incentivized to make that information accurate.

$X should also be substantial, at least equivalent to the cost of bringing a lawsuit.

$Y should be nominal, just to discourage providing false information.

In what circumstances would escrowed money be forfeited?

If the escrowed money doesn't go to the parties, then there's no incentive from either side to consider the other side's escrow when determining their actions. Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out. I think you need a lot more details on what happens in each scenario here.

The circumstances where the escrow IS NOT returned would be the forfeitures. You have to read between the lines since the comment only specifies when escrow IS returned.

So, alleged copyright owner loses escrow when a counter claim is filed. The accused loses escrow when a lawsuit is filed.

This detail isn't as important as the overall result. Those who engage in mass DMCA abuse will directly lose money as a result.

> The accused loses escrow when a lawsuit is filed.

So all the alleged copyright owner needs to do to deprive the accused of $Y is file a lawsuit (which could be completely lacking in merit)? That is arguably worse than the status quo, unless $Y is trivially small, in which case it lacks meaning to begin with.

If the plaintiff's case lacks merit, the defendant will get $Y back when the plaintiff loses, plus other fees, and the plaintiff who wasted everyone's time pays all of those costs and potentially punitive damages or sanctions if it was a really egregious abuse of the takedown process.

> In what circumstances would escrowed money be forfeited?

When a counter-notice is filed (and so the material at issue is put back online) but a lawsuit is never filed the $X would be forfeit.

When a counter-notice is filed and a lawsuit is filed then both $X and $Y would be forfeit.

> Or worse - someone could file a suit and dismiss it later just to force escrow to be paid out.

I would imagine $X and $Y being small enough dollar amounts that this maneuver wouldn't be worthwhile.

Sounds too harsh for the first, unless $X is very low. What if you learn from the counternotice that they're not going to be able to be able to pay a judgement?

And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.

> What if you learn from the counternotice that they're not going to be able to be able to pay a judgement?

You would still want the copyright-infringing material removed regardless of their ability to pay.

> you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights

In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees.

>You would still want the copyright-infringing material removed regardless of their ability to pay.

But it might not be cost effective to file a suit. Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged.

>In the US you are almost always required to automatically pay money in order to assert your rights. Filing a lawsuit means paying filing fees.

That's if the courts are involved. The nice thing about the DMCA is it provides a completely free way to assert your rights, and the other side must file a lawsuit in order to change that. I guess your proposal would still require a lawsuit to be filed before you actually lose money, but even putting money up in escrow seems like too much to require.

> Giving up after a blatantly false counter-notice is a reasonable choice today, not to be discouraged.

I don't think it's that reasonable. If the counter-notice is so obviously wrong, then following through with a lawsuit probably stands a good chance of a default judgement in your favor, and a very good chance of a summary judgement in your favor. If every such case was pursued to final judgement or settlement, then we would quickly see this process provide effective deterrent to blatant copyright infringement.

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.

"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.

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?

> 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.

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.

> 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.

>... 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.

> 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).

> If the counter-notice is so obviously wrong, then following through with a lawsuit probably stands a good chance of a default judgement in your favor, and a very good chance of a summary judgement in your favor.

Lol, no it doesn't. Even launching such litigation costs tens of thousands of dollars per time, and many copyright owners have to file literally millions of requests a day, the vast, vast, vast majority of which are legitimate.

> and many copyright owners have to file literally millions of requests a day,

No copyright owner is capable of filing millions of valid DMCA takedown requests per day. Anyone attempting to do so is flouting the requirements of the DMCA takedown procedure and committing perjury with every notice sent where a real human has not personally viewed the allegedly infringing material and come away with a good-faith belief that it does indeed constitute infringement of the work identified in the notice.

> And the second is also too harsh - you should have the opportunity to defend yourself in court, not automatically pay money just for standing up for your rights.

If a lawsuit is filed, then you do have that chance to defend yourself, and win a judgment that includes expenses like filing fees.

That's complicated. This isn't what lawmakers are interested in passing. Broad "get it done however" motions is how modern laws are written, with some very notable exceptions due to lobbying.

It doesn't need to be a law passed by Congress. Congress need only pass a law authorizing the USPTO (or FTC, or FCC, or whoever) to promulgate a system that facilitates DMCA compliance while disincentivizing its abuse. Then the USPTO would set the rules and parameters and oversee compliance.

That's how most modern regulations are written.

> It doesn't need to be a law passed by Congress.

Then why should I (or anybody) be expected to follow it?

And before you say "modern regulations" I'll point out that my position generally is that regulations instead of law are how we've gotten so deranged in the first place.

Also, the money is fucked.

Same reason you follow rules set by the FCC and don't create your own pirate radio. They have there own enforcement.

Eh... i don't have a pirate radio because i'm lazy, not because i'm afraid.

I'd say that does an end run around the process the Founders put in place for good reason.

It was not specified in the Constitution that the Congress shall delegate the finer details of lawmaking to the Executive Branch in the form of Administrative Law. It said that legislative power is wielded specifically by the Congress. Given that judicial review takes as an input the intent Oof the Congress, it seems daft to leave the intent to question by not having the details worked out by the legislature.

This has the practical upshot in disincentivizing unnecessary or frivolous lawmaking to boot. If instead of spending time trying to jam in notionary laws into an omnibus bill somewhere, a legislator had to come to terms with the how, not just the what, I'd wager we'd over time start to see a far morecohesive legal landscape begin to take shape.

The problem is Company A has deep pockets person B doesn’t. If the amount is too small to file DMCA it wont change a thing. If it’s too high person B won’t be able to fight or put money in escrow. Sounds great and all but I don’t see a working solution to what I stated above.

Seems like a good idea to me. Are you thinking of small or large values for $X and $Y?

That is the question. If the dollar amount is too low then big companies could afford to abuse the process but if the dollar amount is too high it would be difficult for individual content owners to assert their rights. I was thinking $100 to file an initial claim and $50 to file a counter-claim but I really don't know.

Or perhaps a mechanism where the cost to file an initial claim goes up to $1000 after a person/entity has filed a certain number of claims for the year?

I really like counternotices being free. You shouldn't have to pay for standing up for your rights.

I'm open to payments for DMCA notices, but it shouldn't be forfeited just because someone filed a counternotice.

I think a better system would involve the escrowed money going to the other party, and allow some sort of small claims court to adjudicate those matters. Although it still feels extraneous. If there's strict liability for false claims and automatic lawyer fee awards then we'll get an industry of contingency lawyers taking such cases in hopes of an award.

Notices should also be free by that logic, since by sending one you're also standing up for your rights.

Everyone likes to imagine DMCA senders as large companies and trolls, and it's true that that's a large section of them, but not all.

There are also individuals who have had their blog articles copied, independent photographers who have had their photos used without permission, videographers whose videos have been copied to other YouTube channels.

In some situations DMCA can help the little guy too.

The difference is that copyright is a right that involves making money, while the right to free speech doesn't always involve selling things. The sender of a notice is benefiting off of copyright in some way, while the alleged infringer might not be benefiting financially, and therefore it's more important to allow them to defend their rights freely.

> The difference is that copyright is a right that involves making money

No it isn't. That's one reason, but international copyright treaties recognise a host of rights that copyright gives including the right to attribution, the right to maintain the integrity of the work, and the right to control distribution (including the notion that you can just say you'd quite like it not to be distributed thanks).

The US has a doctrine of first sale which says there is no right to control distribution. There's a right to control copying, that's it.

> The US has a doctrine of first sale which says there is no right to control distribution. There's a right to control copying, that's it.

Leaving aside the long running issue that despite some people's claims here that US copyright law is evil and run by megacorps while the reality is that the US is in breach of many of it's treaty commitments on copyright (and has been for a long time), the doctrine of first sale absolutely does not say that there is no right to control distribution.

Mind explaining what acts you believe are covered by distribution rights and not under first sale?

Not always. Say that an artist posts their art to Deviantart, and another user rips it off, erases the watermark, and uploads it to Reddit.

No money changing hands, but the artist still has the legal right to remove the copy and/or be properly attributed.

I think appropriate values would be whatever it costs to file a lawsuit in the relevant court, plus a transaction fee for the escrow service.

DMCA takedown notices were sold as a way to get quicker action than filing for an injunction, but they should not be usable as an alternative to a real lawsuit. If you're sending a takedown notice, you should be prepared to follow up with a lawsuit, including being on the hook for the fees.

I think it would also be nice for abandoned takedown notices (ie. where the counter-notice isn't contested with a lawsuit) to be public record entered on a court docket. That way, abusers of the system can be more readily identified and tracked.

Maybe a sliding scale based on the companies revenue (or individuals income). Parent company if corporate.

If I am a small indie label protecting my artists why should my fee be extravagant? But if I am say, a subsidiary of Disney, maybe I can bully my way through the system and acquire more IP because I have access to capital.

Unless the amounts in question are nominal, the accused infringers will just get crushed by copyright claims.

If you have to put up money to file a counter-notice but you get it back when the content gets restored, you're only out that money for at most 10 business days, and only having to put up money for at most one notice at a time per work you've uploaded. That's probably still a bit unfair to the victims of DMCA abuse, but it's hard to financially crush an accused infringer this way. And if the accused infringer gets part of the accuser's fee when the accuser declines to take the dispute to court, then users have a chance to make money off insincere copyright trolls.

If the amount is large small creators will be crushed under this system, unable to afford the deposit.

Did you mean to post this elsewhere? My comment and the one above it were specifically about the targets of takedown notices, not senders.

How would that be enforceable on parties outside the US?

Anyone filing a DMCA counter-notice from outside the US agrees to submit to the jurisdiction of a US federal court, or else the counter-notice is invalid.

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