So, people are semi defenceless when these things come up, and you can really abuse people in pretty epic and unending ways
For individuals you have a point, but for small and medium companies this seems like an exaggeration.
I've worked for several startups. The smallest was one that I co-founded with no outside funding - we maxed out at five employees, three of whom were co-founders, but nevertheless we registered and successfully defended trademarks and copyrights. That business ran until its main product became obsolete, for about 5 years.
The funded startups I've worked for all used the legal system around IP in various ways: trademarks, patents, copyright.
One of these bogus DMCA claims would be easily and cheaply dismissed by any competent lawyer. And really, probably doesn't even require a lawyer unless a hosting company acts on it and doesn't listen to any objections.
If you're a new small business owner how do you vet lawyers for competency? If you accidentally engage a less then competent lawyer who screws up, how does that impact the individual and company?
People often ask me for recommendations of a lawyer outside my field, or indeed in my field if I can't help them because my firm is conflicted or for some other reason. The thing is I don't personally use lawyers, so I have only the vaguest idea. I can tell some things from firms' reputations and their websites, but even for me it is a hard call.
And the law firms I have most experience of in practice tend to be the ones which I would go out of my way to disrecommend :-).
So I agree, that is a problem. Particularly for litigation. Unless you are doing litigation a lot - which is likely to be bad news for you - you can't get experience of a lawyer and decide that you like them. Word of mouth is also rather less useful.
And there's always reputations and word of mouth but I find that to actually be more or less on point when it comes to particular niches, like if you need someone who spoke a particular language or dialect, or someone who understood how to cross examine about technology and not have the jury fall asleep on you, or someone who can handle a child witness and someone who can't. It's not that different in the civil context, is it? There was even a prosecutor who was widely known to be susceptible to running himself into Batson challenges and sure enough the first trial I had against him he managed to dismiss every minority in the pool leaving me and the client the only two in the room which was glaring since the jurors began noticing that something was before we even got there. It was moot since we got a mistrial but if the opposing side is known to be generous with free issues to preserve for appeal you'd be on the lookout, wouldn't you? Or am I still overestimating how often civil attorneys end up in front of a jury broadly?
You do meet opponents, but in some fields, not often enough to really know.
In crime, your client would be in the cells much of the time and you could sit at the back of the court and watch lots of counsel do a good or bad job.
Of course even the civil bar do get to know each other in the way that commercial transactional lawyers - which is what I do now - don't have as much opportunity to do. I am typically dealing with commercial organizations all over the world. Too many lawyers to get to know.
The best way, generally, is to survey other lawyers in the same field and jurisdiction and cross-reference to see if a firm or solo practitioner gets more recognition from their peers independently, btw. It's how lawyers find representation in fields they have no familiarity with. The jingles at best are entirely irrelevant and may even be an indicator that the firm relies on volume more than it really should.
edit: should mention that this generally applies for criminal or administrative cases. The civil arena is far too big and varied for me to suggest a heuristic that can be generalized since it concerns so much work that is wildly different and also, comparatively few court appearances (although I'd likely use the same method, but starting with my classmates, if I need to hire someone for a civil matter, if I have a classmate who practices in the field and in my jurisdiction).
I made friends with a few local lawyers, explained the situation and asked them to send a response on their letterhead or via email telling them in proper legal language to 'fuck off' (usually they'd mention it was outside statute of limitations and the use was never willful infringement or it was user contributed and we were only hosting the content). There was never a situation where they didn't leave us alone after that. I guess they assume real small companies will either panic and pay to settle or ignore legal summons and lose by default?
I refer m'learned friend to the precedent of Arkell v Pressdram
Theoretically it is every individual’s responsibility to know and comply with the law.
A lot of this stuff is routine and doesn’t need a superstar. A general counsel can typically recommend specialists if you need them.
I get to choose the best and most expensive lawyers and tell them to bill however many hours they like, because that asshole I'm suing is going to have to pay for it?
Or I want to keep costs down, but the other guy has hired a team of three $500-an-hour lawyers to bury me in paperwork? And the only way I can avoid losing and having to pay is to respond in kind?
Sounds like a recipe for deep-pocked corporations like Disney to win every legal action.
It certainly seems appropriate that something like copyright litigation, which has statutory "civil" penalties in excess of the GDP of a medium-sized country, demands the judiciary branch extend some due process (including Gideon) to the unincorporated defendant.
Patents need more money, but all the externally funded startups I’ve worked at had the money for that - investors consider them important.
a large company can absolutely drain your small/medium business with frivolous lawsuits.
the point is that Western judicial system largely caters to capital not justice.
The problem is that there is no way to make it 'fair'. All the proposed reforms are also incredibly unfair, just in a slightly different way from what we have.
For example, if you remove the power of precedent suddenly knowing and being able to search case law becomes unimportant, giving laymen a huge step up in defending themselves. However it also makes the legal system far more inconsistent across judgements.
Instead laws are poorly written meaning case law becomes the actual law
You tell me how to fix it.
And I'll tell you how a bad actor will abuse your fix.
Of course there are tens of other small improvements that could bring improvements, starting from simplifications of the legal code to small claims courts that would be allowed to punish minor offenses by corporations that are repeated on a systemic scale.
What are the abuses that you see, and most of all, do you think those abuses would be worse that the current abuses?
This also means that the smaller players wood get drained out if they try to abuse the system.
Another thing is that the CEO wild be forced to attend, or have very high costs to not be there. This is too ensure that me, as an individual, have much more to loose personally (and can be exhausted) in front of a corporation who has leaders wise job is to be at the court.
I did not put a lot of thoughts on the ideas, but the basic one is too make everyone suffer the same relatively.
This is partly sourced from Finland roads, where you pay in function of your wealth when you cross the law
Some of the system being like that probably comes partly from the founding idea of "a government of laws and not of men" and the US constitution.
You don't actually need a lawyer to respond to bogus charges. Legal trolls make their money assuming most people settle or don't show up. Just submit your evidence, show up in court, and if it is bogus, it will be clear.
Small claims court is a completely different beast, it is designed to be navigated without counsel.
If you play this way in civil litigation you are likely going to lose before you know what hit you.
Why? Search brings up lots of them.
I once used a process server service called "Attila the Hun School of Charm". They are gone, but there's a "Gotcha Process Servers" in San Francisco.
This is not just self interest. There really are a lot of hidden traps. Words almost never mean what you think they mean. If they have a lawyer and you don't, you are taking a serious risk.
i.e. even where it isn't opaque, it is surprising how many people mess up.
(Of course that includes lawyers)
I guess you'd have to at least suspect the letter was fake to try that, so you might miss it if that's not even on your radar.
I would never live in a country (guess US) where you need a kidney to defend yourself even if you did nothing wrong.
If they are serious, they will follow it up - and you will eventually have to show up in court.
I see a letter like this, I’ll wait for them to file an injunction.
A fake DMCA claim is fraud or at least perjury, but trying to actually bring a claim for that will be difficult for most people.