Comment by DannyBee | Hacker News Reader

Comment by DannyBee | Hacker News Reader

Parent Full thread

So, it's not practically unenforceable. The case Eric is citing appears to be a case where Someone has an actual good faith but unreasonable belief that they have a cause of action.

That eliminates the "knowingly" part. A lot of DMCA claims, including the one in the OP, are being filed by lawyers or companies who will have a much harder time showing they have a good faith but unreasonable belief. They are basically going to have to argue they are idiots. The second you can show bad faith, i have trouble believing (and I don't know of any cases where ..) a court would not impute knowledge.

Basically, you want them to have to consider your affirmative defenses (which is what fair use is). While i don't necessarily disagree, to be fair, this would be wholly inconsistent with almost every other area of law.

For example, if i file a negligence claim against you, you bear the burden of proving any affirmative defense to my claim, such as assumption of risk. I don't have to consider it at all when I file my claim, and if you don't prove your defense, i win. This is true no matter how valid your defense may be.

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.

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 ).

>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.

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.

Isohunt is the intermediary. If they don't like a takedown notice then they can just not execute it; they don't need any redress from the courts. The plaintiffs with standing should be the end users who posted the material that was removed.

>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.

Setting aside that Isohunt is the wrong party, yes, there are a mountain of take downs from which some small percentage should result in damages. But you can identify those cases ahead of time -- you know perfectly well you aren't going to win a case where you posted Fast & Furious 6 to Isohunt and Universal Studios issued a take down for it, there is no point in even trying. And if you do try then you're effectively admitting your own liability for copyright infringement when you have to assert you posted that material in order to get standing to sue.

The cases lawyers will want to take are the ones they think they can win -- and as long as they're right, that's what they're supposed to do. That's the whole idea.

Are you arguing that the situations where the take down is in a grey area (e.g. fair use) will create too much litigation? I don't really see that happening. On the one hand, the existence of penalties would create a disincentive for copyright holders to wantonly issue take downs in questionable cases, and if there was no take down then there is nothing to litigate. Then, in the consequently much reduced number of edge cases, in order to claim a take down was fraudulent a plaintiff would have to admit in court to posting the material and thus to liability for copyright infringement if the take down was legitimate.

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.

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.

Reply on news.ycombinator.com