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Comment by saurik | Hacker News Reader

And the punishment to Netflix once you win in court is just damages (good luck showing any actual serious large damages here) and legal costs... there should be a massive fine and a loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly.

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> and a loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly.

This alone feels like it could solve so many problems.

> loss of DMCA Section 512 expedited takedown privileges

No such privilege exists, so I don't know what this is supposed to mean.

I suppose that you could put violators on a list where, for parties on that list, a 512 notice didn't require a takedown to stay in the safe harbor but triggered some other (new) process, like (for instance) notice to the user and defined-in-law period for the user to submit a counter-notice with a takedown only required to retain safe harbor against the copyrightbholder if no facially-valid counter-notice is received within a specified period, and the safe harbor against the user isn't applied if the takedown is done prior to the required opportunity to respond.

But that gets tricky to administer correctly (how long does DMCA-penalty-status last, how does it apply when third-party copyright agents like the RIAA are filing notices on behalf of copyright holders, is it the agent or the copyright holder that receives the penalty, etc., etc.)

Yeah: clearly to make that happen would require some kind of new process ;P. As for your questions, as clearly I am an angry Internet commentator being maximally punitive, the answers are simple: "everyone involved loses the ability to be de facto trusted forever" ;P. Of course, this makes no sense in practice, but neither does the status quo: the cost to Netflix for filing frivolous claims is essentially 0, and puts the burden entirely on the users, which is as ridiculous to me as my drastic alternative.

Declare your billable rate in the counternotice as $1000/hr and use that as a basis for compensatory damages.

IANAL - but it seems unlikely that you can just claim an arbitrarily large hourly fee. Wouldn’t you need to justify those costs in some manner?

When an attorney charges $500+ per hour, they never seem to justify that fee. Corporate litigation expenses can easily be thousands of dollars per hour. You have multiple paralegals. Multiple associates, and perhaps a partner. A case that makes it to a courtroom can exceed thousands per hour.

I paid a trademark attorney for some work at it was $350 for about 15 minutes of work. $10k per hour would be a stretch, but $1000 an hour? Not particularly noteworthy.

It's a very odd system. If you can prove you usually charge clients $1000/hour, then you can probably force the other side to pay you that fee. It therefore follows that if you think you have a very good chance of recovering legal fees, you may want to actively seek the best and most expensive lawyer possible, both to help your chances of victory and to punish your opponent if and when you win. Of course, this option is not available to people who cannot already afford the most expensive lawyer.

When the President got his legal fees paid by Stormy Daniels, his most expensive lawyer was charging about $850/hour. The judge cut it back, not because the lawyer was too expensive hourly, but because he felt the lawyer had billed too many hours.

There is a cap. Also, you can't get reimbursed unless you're an actual lawyer - no pro-se.

This is bullshit, it's not like it can be written and done on a napkin in under 15 minutes...

I seem to remember a pro se asking for attorney's fees once. As I recall, it didn't work out, though IMHO it should've.

> loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly

Not gonna happen. It would cut copyright bots off at the knees since they're currently designed to err on the side of false positives over false negatives and that's the way the media cartels want it.

You would have to break the RIAA and MPAA's hold over Congress first, and good luck with that. You can't vote them out because they own both sides. We're talking about multiple multi billion dollar companies here, when they go to congress with demands they get it. That's how we got the DMCA and ludicrous 120 copyright terms in the first place.

> Not gonna happen.

Obviously... trust me: I know that nothing I want is ever going to happen (and my having become a politician years ago--one who successfully sits on various elected boards and commissions--has only made that more clear to me, not less ;P).

More and more I'm thinking the solution is no copyright at all.

No more avengers? Meh. More youtube-dl's? Hell yes.

Punitive damages is a thing.

Juries don’t like awarding them. The cases you hear about are newsworthy precisely because it’s so unusual.

If there were many of them either the supreme court or congress will likely limit them. That isn't to say either of the above think they are wrong so much as it is easy to see how they can be abused.

> If there were many of them either the supreme court or congress will likely limit them.

The Supreme Court has suggested a soft limit, suggesting, IIRC, that it is rare that an award of more than a single digit multiple of actual damages will satisfy due process analysis.

> Punitive damages is a thing.

What is the cause of action here allowing damages, punitive or otherwise? Stating a copyright claim in a DMCA takedown notice based on a different reading of how the four factors of fair use, which the statute doesn't explicitly set standards for or any details on how they interact, differently than a court later interpreted them?

Sure, if the court viewed things your way Netflix would lose a copyright infringement case against you, but that's about it.

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