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Universal, Pay Those EFFing Lawyers
Section 512(f) of the DMCA says pretty clearly that anyone who "knowingly materially misrepresents under this section... that material or activity is infringing... shall be liable for any damages, including costs and attorneys' fees", which would seem to apply here; the EFF argues that Universal should have reasonably known that the video obviously constituted fair use. In a Law.com article about the case, attorney Kelly Klaus, representing Universal, countered that "Congress also said that there was another remedy, which is the counter-notice procedure, which is what happened here." But this seems to miss the point -- the DMCA says that the remedies are the counter-notice procedure and an award for attorney's fees. (Klaus's firm did not respond to requests for comment for this article.) Anyway, as EFF staff attorney Corynne McSherry points out, if there were no possible award for attorney's fees against copyright holders who make false accusations, then there would be no disincentive for copyright holders not to file frivolous accusations in the first place.
I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
On the other hand, if the EFF doesn't get their attorneys fees, then they have to eat the cost of the work they did, and that doesn't seem fair either.
The problem is that once you have a $400,000 bill on the table, someone has to pay it, which punishes one or both parties usually vastly out of proportion to any wrongdoing. ($400,000 is almost half of what Reebok had to pay when one of their lead-tainted bracelets killed a child.) Huge attorney's fees awards also limit access to the court system for plaintiffs who might have a reasonable case, but can't afford the risk of having to pay attorney's fees if they lose, and for defendants who might also have a reasonable case, but are under pressure to settle quickly to avoid the risk of a huge attorney's fees award against them.
This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?
Now, any argument about the legal system usually raises two kinds of objections. The first is that the existing system "works". Well, in many ways it does, but everybody also knows that wealthy corporations and individuals enjoy a huge advantage in the court system, even though courts are supposed to treat all parties equally. So at least in that respect it doesn't "work" the way it's supposed to. The second objection is that it's too hard to change the rules and traditions that are built into legal proceedings, so it's better just to work within the system. True, but that's not the question I'm asking. I'm posing it as a logical brainteaser: If you had carte blance to modify the way that legal disputes were held, could you do it in a way that respects the rights and interests of all parties and still minimizes the legal fees incurred? (Whether I'm right or wrong, my goal is to make this argument more interesting to mathematicians and game theorists, than to lawyers; otherwise, I've failed.)
From a game-theoretic point of view, you might argue that large attorney's fees serve a useful purpose by discouraging frivolous lawsuits. The problem is that the fees don't just discourage frivolous lawsuits but also non-frivolous lawsuits where there's a reasonable chance of losing. On the other hand, a person who is already broke would have little disincentive to file a frivolous lawsuit, since the worst that can happen is that they'd get hit with a huge award for attorney's fees and have to declare bankruptcy, which they might consider worth the risk for a small shot at a million-dollar payout. So assume that attorney's fees are not themselves the best way to deter frivolous lawsuits, and that avoiding large fees in general is still a desirable thing. How do you design rules to achieve that?
I think you could save a lot of money by enforcing a rule that a lawyer is not allowed to seek attorney's fees from the other side for arguing any points that the other side offered to concede anyway. So the incentive would be that if party A's lawyer concedes some point of fact or point of law, and party B ultimately wins the case and an award for attorney's fees, then party B is not allowed to seek attorney's fees for arguing the point conceded by party A's lawyer.
In all of my legal cases where the other side was represented by a lawyer who was getting paid by their client up front, it was clear from reading the other side's briefs (and my own lawyers agreed with me) that opposing counsel had spent a lot of time spinning their wheels and arguing obvious or irrelevant points before getting to the crux of the dispute. If their client wants to pay them for that busy-work, that's between them and their client, but if they had won the case and an award for attorney's fees, I would have objected that they shouldn't be allowed to charge us for time they spent arguing points that we would have given to them anyway. The hypothetical savings from implementing and enforcing this rule, are not trivial.
So how does game theory predict that the two sides would behave under this rule? Suppose MegaCorp is suing or being sued by IndieActivist. MegaCorp's first priority is to win, and if possible to hit IndieActivist with a huge award for attorney's fees to discourage other would-be IndieActivists. MegaCorp doesn't want to lose, but if they do lose, they don't much care about the attorney's fees award they would have to pay to IndieActivist's lawyers. In this scenario, they would be expected to concede very little, disputing trivial points in order to drag out the case as long as possible, hoping that IndieActivist's lawyers would run out of time or money and pressure their client to settle. In other words, MegaCorp would behave about the same as they would under the existing rules.
For IndieActivist, on the other hand, their first priority is to win, but they also care very much about not having to pay a staggering award for attorney's fees if they lose. So they would be expected to concede any points of fact or law, even if favorable to MegaCorp, if those points are so obvious that they don't think the judge would be likely to rule in their favor on those questions anyway. This way, even if IndieActivist loses and has to pay attorney's fees to MegaCorp, those fees would be limited to the time spent arguing the actual point of disagreement that formed the crux of the lawsuit.
Suppose, for example, that Universal had actually sued Lenz for violating Prince's copyright by using a 30-second excerpt of his song in her video. Lenz or her lawyers could have filed a brief conceding all the obvious points that they would expect Universal's lawyers to make: Prince was the holder of the copyright, the copyright had been filed with the Copyright Office, Lenz never sought permission for using the recording, etc. Very quickly, the whole case could be distilled down to: "Show this video to the judge and let them decide if it qualifies as 'fair use'." Any effort spent arguing any points beside that, is wasteful. And if the legal system encourages lawyers to rack up billable hours arguing other points, then the system is wasteful. Concede the obvious, and everybody's costs are kept under control.
This only partially addresses the problem of large attorney's fees, because it still leaves the fees that are generated in the process of arguing points that the other side wouldn't concede. Solving this problem is much harder, because while you can simply eliminate the work that's spent on arguing points that the other side would give to you anyway, you can't eliminate the work spent on points that are genuinely in dispute, you can only try to make that work shorter and cheaper. I've argued for my own fairly complicated remedy in a separate article, but my main point was that legal costs aren't driven up so much by the complexity of the law as by the ambiguity in it. The Windows programming interface, after all, is also very complex, but if you can write a clear description of what you want a simple program to do, you can often get a programmer to write the program for you for dirt cheap. In arguing a legal case, on the other hand, the number of possible outcomes grows exponentially with each point of ambiguity in the law where there's no way to predict how the judge will interpret a particular rule.
But still, even if you can't reduce the ambiguity in how a legal question will be interpreted, you can avoid a lot of unnecessary attorney's fees by distilling the case just down to that particular question. Is it fair use to use a 30-second clip of Prince's song in a video of a dancing toddler? Let the judge decide. But if that's the one and only point that both sides can't agree on, then neither side should be able to bill for time spent arguing about anything else.
Perhaps someone mathematically or logically inclined can come up with a better algorithm for avoiding the billing hours generated by arguing the obvious. I'm not entirely happy with my own solution, because it still allows MegaCorp to concede absolutely nothing, and to try and bleed IndieActivist dry by forcing them to argue even the most trivial points. IndieActivist's lawyer could be reimbursed for that time if they win and get an award for attorney's fees, but they might run out of money or patience before then. To counter this tactic, you could allow either side to seek penalties for Frivolously Arguing The Super-Obvious. If IndieActivist's lawyer wants MegaCorp to concede an obvious point and MegaCorp won't do it, IndieActivist could seek a FATSO penalty, and the judge could decide whether to award them that penalty if the point is really and truly obvious, without deciding on the merits of the case as a whole. The penalty doesn't have to be large enough to hurt MegaCorp, it just has to be large enough to compensate IndieActivist's lawyer for their time, so that MegaCorp can't run them into the ground by forcing them to argue every point unnecessarily. However, economic game theorists might think of some unintended consequence of the FATSO rule. Could MegaCorp flood IndieActivist's lawyer with a gigantic list of requested concessions, so that if IndieActivist's lawyer screws up and forgets to concede one of the points that the judge turns out to consider "obvious", MegaCorp could hammer them with a FATSO award too? It's hard to anticipate all the ways that either party might abuse a new rule of the game.
Meanwhile, under the existing system, while it may be unfair to Universal in some cosmic sense that they have to pay out $400,000 for sending one mistaken DMCA takedown notice, it would be more unfair to force the EFF to eat those costs, and in any case the DMCA does clearly allow for an award of attorney's fees. But it would be better for everyone in the long run -- especially for the EFF and the kind of relatively powerless clients that they usually represent -- if there were more ways to keep legal costs from spiraling out of control in the first place.
This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?
Not with copyright and fair use. Fair use is deliberately ambiguous. This is the reason why huge legal bills can be generated over it. Because it is ill defined. No amount of logical, sane Markov modeled state diagrams could convince some people that they are now entering a state of expected loss on a case.
Allow me to present what will undoubtedly be a very unpopular viewpoint here.
"Let's Go Crazy" is a 279 second track off of Purple Rain. Most Copyright lawyers consider 'safe harbor' for fair use to be one tenth of a song or, if longer than five minutes, thirty seconds (even Wikipedia implements this). In a very pedantic analysis, had she used 27.9 seconds of the song instead of the quoted 30 then there would be no grounds for take down, let alone a court case.
Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).
I'd like to see Universal burned by their mechanization of this process but there's your unpopular defense of having to take this to court based entirely around popular 'safe harbor' limits and deliberate ambiguity of the law. And I guess this could be seen as Universal having to try to draw the real line with precedence for court case established 'safe harbor.' Universal could fear popular 'safe harbor' limits expanding if they don't fight these things.
"knowingly materially misrepresents under this section..."
The question is -- given the above -- were they really?
My work here is dung.
$400,000 for writing a letter? I like the EFF and I sort of agree that it's not fair they have to eat the costs of defending a fraudulent claim. But it was their choice to send the notice chiseled on a solid gold tablet.
Run this by me again.
EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.
that don't see deep cultural penetration of their products as an unqualified good. They could take a cue from Microsoft and learn that even piracy brings value by making your product be what's on people's minds in a desirable way. Yes, Microsoft may lose business, but they maintain marketshare. Likewise, a label whose songs are remixed in fan videos or used as background music in a YouTube video is keeping its product out there at no cost to itself, which at least keeps it in the minds of more music buyers.
Did I miss something or is the summary just leaving something out? $400,000 to write a single takedown notice, which youtube complied to immediatly? Again, I haven't read the whole wall of text yet, but that seems like a very unreasonably number for that kind of service; you have to wonder if the cost would be less if they weren't expecting to recoup the fees from Universal.
What a long rant.
The short of it is: Universal is one of those companies that appears to have absolutely no trouble asking for similar figures when it is them who filed the suit. And I'm talking both damages and attorney fees. Quid pro quo. You ruin people upload 240 seconds of your song, then be ready to be ruined yourself when you falsely accuse people over 30 seconds of it.
You can't have it both ways. Either these are the crown jewels and everything about them is so precious that your ridiculous fees and damages are alright, or this is mass-produced cheap crap with a net worth around a couple cents. Which one is it?
Assorted stuff I do sometimes: Lemuria.org
Why should the punishment for depriving a person of their right to fair use be any less severe than violating a copyright?
Time is what keeps everything from happening all at once.
The problem with attorneys' fees is not unlike the problem in the medical profession. They usually get paid per hour. This gives them incentives to drag cases out and not do their best work up front. After all, if you end the case fast, you don't get much money.
I've seen advocation from some (including in Forbes in a column by a lawyer) that hiring an attorney should be more of a flat fee model. Based on previous cases, your law firm should be able to guess how much it will cost to run your case. So you pay them $10k (for example) and they try it. If they are good and get it done faster than expected, they've made more profit. If they underbid, they'll pay the price and have to eat a bunch of extra time.
Now you would have to have some provisions in there to revisit the fee every 6 months, or that fee only covers up to 2000 hours (on an expected 500 hour case), or something so cases that go to the Supreme Court don't earn the lawyer only $250, but it would at least give lawyers a better incentive to do good work.
That would lower legal costs, making fees returned for frivolous lawsuits lower.
As a bonus, if fees are lower, judges are more likely to make one side pay for the other's legal expenses in pointless cases.
Comment forecast: Bits of genius surrounded by a sea of mediocrity.
$400,000 to write a single takedown notice, which youtube complied to immediatly?
Part of the problem with the DMCA is that service providers such as YouTube can't comply to these notices immediately. The law requires service providers to wait at least 10 business days before putting the disputed work back up in order to maintain safe harbor. This especially affects disputed works that are time-sensitive, such as those associated with an election or a sporting championship.
It's like a superhero stepping in to save the day... and then demanding monetary compensation. Except $400,000 sounds more appropriate if it was someone's life or limb on the line rather than a video of a kid dancing.
@humanity: *facepalm*
I'd like to point out that sneaking TFA into TFS cheating. Damn you.
Universal has RIAA artists, so just use the money RIAA collects from their crazy-high piracy fines to offset any crazy-high fair use fines.
stuff |
From the standpoint of (an) IndieArtist -- They don't have a team of lawyers or sub-sub-contractors trolling youtube videos looking for so-called infringments.
So the only way that they would find out is by somebody else reporting it, randomly stumbling across a video, or by purposefully searching for their song titles.
In any case, IndieArtist would have to read up on DMCA takedown actions and responsibilities, because TANAL. Hopefully, before sending out any such takedown requests, they've actually spoken to a lawyer-friend to get advice.
At the very least, they would have had to "done their homework" and viewed the videos looking for infringing materials. But again, the concept of infringement to IndieArtist may be subtly different: Propagating their song by fan-made tribute videos can only increase their exposure, so unless they're really trying to stop something from getting out of hand, chances are they're going to "let it ride," or at the very least, contact the poster of the video and ask them nicely to remove it, or hey! "buy the CD if you haven't already."
Support FSF: Stop thinking with your wallet, and think with your imagination. (cc/non-commercial)
In what crazy universe does it take multiple lawyers hundreds of hours to file a DMCA counter-notice? I mean, $400,000 is enough to pay a team of 10 lawyers for a month of billable hours! How could they have possibly accumulated that much just to file a simple boilerplate letter?
At most this sort of thing should cost $1000-2000.
dom
...then 1 attorney taking 2 or 3 hours of time to review the facts, compose the letter, and handle internal billing paperwork is surely worth $400,000. What goes around comes around. When grandma gets penalized millions of dollars for having her grandson download 20 songs over bit torrent, surely lawyer fees must be worth much more.
Authority questions you. Return the favor.
Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
This can be answered by creating a "Newton's Second Law of Lawsuits", where one legal maneuver can only be countered by a reasonably equal and opposite reaction.
i.e. If you as an independent musician, use your own time and stationary to send a letter, the defendant should do the same, thus can only recover what your time and materials are worth. If you hire a $400,000 legal team to send the letters, it's reasonable to counter that with a $400,000 team, thus you could recover your expenses.
If you really want to go out on a limb, the system could measure the amount of frivolous lawsuits were filed last year and introduce a multiplier in the equation. Thus if there were twice as many bogus lawsuits filed last year as there should be, the plaitifs could recover 2x legal fees, if there half as many, then they can only recover 1/2 of their legal fees. (Leave it up to the law school debate teams to determine how many bogus suits the system should allow.)
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
become an attorney because that's where the real money is. Especially in the USA.
its fair play
"Suppose you were an indie musician who sold your songs online..."
To be awarded damages you have to *know* you were filing a false claim. And at this point the difference between a self-represented indie musician (who accidentally flagged a single fair-use video in a long list of infringing ones) and a team of lawyers specializing in copyright law (who flag every video using any part of "their" songs, with no apparent effort to identify fair use) becomes important. One can argue that they missed some nuance of "fair use". The other really can't. Especially when they do it over and over again with no apparent effort reduce the number of falsely flagged videos.
The point of asking for penalties in this case is not to set a precedent of penalizing every mistakenly sent DMCA claim, it's to change the attitude of "we'll take down every possibly infringing video and let people who think they have fair use file counter-notices" into "hey, lets only file DMCA complaints against videos that are actually infringing."
Does a line appended to your comment give your post meaning in and of itself, or only in relation to those without?
The EFF overreached for excessive legal fees today. This generated headlines on obscure news sites far from mainstream eyes. The Judge will certainly reduce the award, if he doesn't throw the case out entirely because of the preposterous request.
Nobody really cares, and there won;t be film at 11:00.
However, this reporter is left wondering; what percentage of any settlement will the actual injured party, Stephanie Lenz, receive?
If you're an indie musician, you're probably not all that knowledgeable about what constitutes fair use. If you're Universal, with a battery of high paid copyright lawyers, you are much more knowledgeable. The standard is different.
$400,000 is pretty insane though for just drafting a letter. Where is that number coming from? I didn't see it in the linked article. How many lawyers worked on one DMCA counter-notice for how many hours?
Give me Classic Slashdot or give me death!
Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
You're missing the point, it wasn't "accidental," it was purposeful. The question then becomes was it a knowing misrepresentation, in other words that the use of the song was clearly fair use. Honestly, it wasn't. So they're probably not liable.
The only knowing misrepresentation I see here is EFF's ridiculous $400,000 legal bill. The attorneys who signed any legal filings requesting or supporting this should be sanctioned.
It's like a superhero stepping in to save the day... and then demanding monetary compensation.
Compensation from the villain? Of course. Unlike Batman, EFF doesn't have Wayne Enterprises to back it up.
Except $400,000 sounds more appropriate if it was someone's life or limb on the line rather than a video of a kid dancing.
Even if it's to set a precedent likely to affect 400,000 videos of a kid dancing?
The song was barely audible, so much so that I (and I guess many others) wondered how they found out.
It's not punishment, it's attorney fees. If you make a mistake that costs someone else $400,000 to sort out, then you have to pay for it!
An Indie artist would not have wasted $400,000 in fees before they rectified their mistake, in fact they would have actually rectified their mistake, rather than take it all the way to the judge!
The problem with slashdot is that most of its users were bullied and stuffed into lockers as kids!
Perhaps I'm being to generous to the EFF lawyers, but it looks like they're using the $400,000 as a deterrent to rights-violating fraudulent DMCA take-downs. Sure, padding their pockets is a great side-effect, but a large financial slap in the face to online rights abusers is well within the stated mission goal of the EFF. I don't much like the thought of indie musicians getting hit upside the head with half a million dollar lawyer's fees, but the cause of stemming the flow of indiscriminate DMCA notices may be worth the risk.
I think a judge should be able to weigh the ability of defendant to pay against the abuse of the DMCA. A record label that has repeated violated the spirit of the DMCA and shows no signs of stopping is a good candidate for a full lawyers fee; hopefully a more reasonable agreement could be reached if the notice was a one time accident. There is some discretion within such rulings.
So if this is the future...where's my jet pack?
> The problem is that once you have a $400,000 bill on the table, someone has to pay it, which punishes one or both parties usually vastly out of proportion to any wrongdoing.
Yes, $40,000 is a fair punishment, IF you decided to use an ultimate arbiter (the legal system) as your first and only means of interaction.
You should be able to come to some kind of agreement long before lawyers and their $40,000 bills are involved. If you can't, then it's most likely because the $40,000 result is stacked in your favor. Otherwise, you wouldn't play that way, would you?
Since the major abusers of copyright have decided to use a system that was never intended as anything other than an absolute last resort where it is essential that the parties have their differences of opinion reconciled, and use it as though it is a means for forcing their every petty trifle that they notice; then yes, seriously risking $40,000 should be the price of admission. Or, you know, they could try something else first ($40,000 would pay a negotiator full-time for a whole year to try and solve the problem amicably).
THE LEGAL SYSTEM IS A LAST RESORT FOR CASES WHERE NEGOTIATION IS OR HAS BECOME IMPOSSIBLE AND LOSSES ARE OR COULD BE CRITICAL. IF YOU TAKE TRIVIAL MATTERS THERE, YOU ARE TAKING A $40,000+ RISK; AS YOU SHOULD BE. IF IT'S NOT WORTH $40,000 THEN IT SHOULDN'T EVEN INVOLVE LAWYERS; LET ALONE INVOLVE LAWYERS AS THE FIRST OPTION.
> ...but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
Indie musicians probably wouldn't be in this position; because they probably wouldn't have lawyers just hanging around waiting for infringement to be detected so that they can send out mass-produced takedowns. They would send takedowns only for infringement that actually threatened their work; and even then, only where they had bothered to ensure that the infringement, in the opinion of a COMPETENT, PROFESSIONAL AND ETHICAL lawyer, was a slam-dunk case. Otherwise, they'd be better off spending their time getting on with their job of creating and not worry so much that someone, somewhere, might not have paid the full fraction of a dollar that they are entitled to for performance royalties or other purchases.
My suggestion: When you sue someone, you first have to post a bond to the court, the amount being proportional to how much you're suing for. If you win or the case is settled out of court, you get it back. If you lose, it goes to the defendant. Why this one-sided "loser-pays" system? Because the plaintiff is the one who decides whether to sue. The defendant has no choice in the matter. This unexpected interruption of his life and the legal expenses involved in defending himself should be compensated for, if it turns out that he did no wrong. On the other hand, the plaintiff has a choice. He doesn't have to sue. He will only sue when he believes the court costs and attorney fees are something he can afford. This just adds one more potential cost on top of that.
By keeping the bond amount tied to the amount requested by the plaintiff, you accomplish two things: First, it discourages people from suing for insane amounts. Second, if the defendant really did cost you something in the same order of magnitude as to what you're requesting, then it should be pretty safe to assume that you have something on the same order of magnitude in assets. For example, if I mug you and take $250.00, that means your income allows you to carry $250.00 around in your wallet. So posting a bond of, say, $150.00 shouldn't be an overwhelming hardship for you. On the other hand, if I mug you and take $10,000.00, then your income level means you should be able to afford to post a bond of, say, $7,000.00. It's not a perfect assumption, but it's a pretty good one.
Of course, this doesn't address how much the bond would be if you're suing for an injunction, or custody of a child, or some other non-monetary compensation, so those would have to be dealt with as special cases.
You could also give the judge discretion over returning the bond to the plaintiff even if they lose, for example if the defendant deliberately and willfully wronged the plaintiff but managed to exploit a loophole in the law to get away with it.
This also doesn't apply directly to DMCA takedown notices, but a variation of the same theory could work. It should cost you to file a fraudulent notice. Maybe not $400,000.00, but maybe $100.00 per notice.
Seems to me that dealing with $bigcorp might be quite a bit more expensive in terms of lawyer work than dealing with $joebloe. If you need to contact $joebloe, you get his phone number.
If you need to contact $bigcorp, you go through a gazillion channels, find their legal department, possibly first finding the right division of the company, and then finding the *right* legal department, before you can get anywhere.
Writing the letter may be a small slice of the pie.
For the final sum though, I'd expect to see some form of estimate reasonably justifying the $400,000 as opposed to a flat fee. Likely enough though, $400,000 is a magic number intended more to matter enough to gain attention. I wonder if you could bill it as:
local contact: $1500
draft of legal letters: $1000
submission of legal letters: $1000
getting universal's bloody attention: $395500
Lawyers should be paid by the government, with equal access to all. Rather than random attorney's fees as a penalty, levy a fine indexed to the plaintiff's income for frivolous lawsuits. Defendants should never be punished for exercising their right to due process, even (and especially) if they are guilty.
How long have the editors waited to use the phrase "EFFing lawyers"? All their lives, I'd guess.
Grats.
Welcome to the Panopticon. Used to be a prison, now it's your home.
that is, creators dumping their content online for free
in effect, the same point as radio airplay: free advertising
then financial benefits come in the form of warm bodies showing up to your concert gigs, more fame (since there's no barrier to consumers enjoying your content), and then with enough fame, new ancillary streams of revenue like endorsements, personalized content, movie soundtracks, etc.
granted, this system will only reward a few, those who are truly fame worthy. not every artist will benefit from the free advertising. as if most artists benefit from the current system. the truth is that in all art, and this will always be true, no matter the distribution system, that only a tiny few are smash successes. but at least in the direct consumer-creator link, there's more "granularity": artists of marginal value to consumers still get a few bucks. while in the old distributor controlled system, the marginal acts simply wouldn't get any exposure, or any money. this is true even of some "just ok" acts. distributors decided in the old model, and their decisions were often fickle and without reason. plenty of good acts in the past didn't get a contract for really stupid reasons. at least with a direct consumer-artist link, plenty of mediocre to middling acts get good exposure still, and money still from warm bodies at live gigs. so rather than a "cliff", that if you fall beyond a certain amount of fame, you get nothing, in a direct creator-consumer links, its a gradual falling off of exposure... i just realized i just wasted a lot of time explaining the concept of the "long tail"
http://en.wikipedia.org/wiki/Long_Tail
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
Yes. It's better to let 1000 guilty videos stay up than take down 1 innocent video. Give them an inch and they'll rape you with a rake.
Oh god! I think my magical clicky device is broken. I aligned the two eldrich factors correctly and conjured more words to the mystic scrying pool just like I've seen others do, but something happened and I can't fix it. More words appeared, and then more and more and there doesn't seem to be an end to them. Oh god they're everywhere! My master is going to be back soon and I don't know what to do with all of them. I think I'll get the axe!
There is a story about Chinese emperor getting ill and calling a doctor. After spending few weeks of not getting better and paying a doctor for constant care, emperor said "I will NOT pay you anything while I'm ill, but you will earn a gold piece for every day I'm healthy". In the story, emperor got better next day and doctor was NOT executed for cheating beforehand, but lived happily afterward, keeping emperor healthy.
We got the same concept today and it is called health insurance. You are paying constantly, but they are covering medical costs (and often they pay your salary in the period you cannot work). It is broken in most countries, but somehow insurance companies trying to keep hospital costs roughly sane for them.
Wouldn't something similar work for legal services? Or is it already there in form of state-given-lawyer and everyday taxes which are paying for him?
I hate the fact that money buys justice. I propose that neither side can spend more than the other without loaning the other the difference, and loser pays. If I sue MegaCrp for a legit complaint and they bring in ten lawyers to my one, that is hardly justice. They must offer to loan me what it takes to hire a full team. If I decline the offer, they are limited to one lawyer, just like me. If I take their offer and win, they don't get their money back, and they owe me for the one lawyer I paid for. If I lose, I owe them the fees for 19 lawyers. If they think I am not able to repay their loan and/or their own costs, they should not offer the loan and should restrict themselves to equal costs, or even less -- hire a cheap lawyer and make me loan them the difference, and if I can't afford that, I have to reduce my lawyering costs to match.
Same thing applies if they sue me.
Obviously you have to have some leeway; you can't demand matching down to the penny. You also have to have some auditing to eliminate padding and lies. But cases where MegaCorp brings in a full fancy team against a single lawyer is blatantly wrong.
I especially like the idea that it encourages keeping expenses small. The more you spend, the more you have to loan, and the more the other side spends. You can't simply swamp the other side with expensive investigations.
You have to combine with with loser pays or it is pointless.
Infuriate left and right
TL; DR
I care not for your karma and your mod points.
Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?
I could, but I'd charge you £4000000 for the work involved in coming up with it.
That is in jest, but it does make the point that those who would be the ones that would have to come up with such a system would be the ones with the least incentive to spend time doing so. Which gives us a delightful little loop.
on the one hand, the part of me that despises RIAA tactics and obscene punitive damages thinks this is great: smack those bastards right where they'll notice, in the wallet.
on the other hand, talk of future discouragement aside, is the EFF becoming that which they hate? 400 grand for a letter of non-infringement? that's RIAAesque in its unreasonableness.
In Soviet Russia jokes are formulaic and decidedly non-humorous.
1. This is the Legal world not a PHP/.net software contract. The social value of Lawyers is ranked far and above any software/net profession. Their costs have a greater probability of reflecting what's needed in dollar terms to maintain a specific American standard of living within the higher ranks of American society.
2. Look at it the way software projects doomed for failure in the average megacorp are costed-out. Take the lone developer or two's salary, divide it into the hours on the project, then add in every single conceivable cost including electricity for the entire facility, the CTO's salary, Project Manager's salary, Project Team, the cost of every computer that uses the software, the cost of every *user* that somehow benefits and you'll get to a project cost of $400,000 for a bash script. While it may sound funny, I've been there and seen that.
Not to hijack the thread too much, but the CEO's pet project can bleed costs all year and not come under any scrutiny whatsoever.
Bottom line: $400,000 won't last long at the EFF.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
The big breakdown in my mind regarding the concession of obvious points is that there is an unknown amount of effort that goes into assessing a point as obvious or non-obvious. If digging deep enough into case law turns an obvious point on its head, it may be a worthwhile search, and I might not want to concede the point unless it some of that research had been done. More often than we would like, common sense and the law are at odds over things that otherwise seem quite simple.
What do you mean they cut the power? How can they cut the power, man? They're animals!
Ahem.
Just because attorney's fees are sought, and awarded, does not mean they will be awarded in the amount sought. They have to reasonably reflect the legal expenses incurred and the defendant's ability to pay.
IANAL, but I write from experience: I went to court to enforce a provision in my divorce decree against my ex-wife. Long story short: she got the house, could not refi in her name, I was liable for the mortgage, and she was to pay. If she didn't I had power of sale over the property, to eliminate my obligation. Further, she agreed to a "hold harmless" provision to my benefit. That meant that she was to pay any costs I incurred to enforce the decree. Well, she never paid on the mortgage, I sued to enforce the power of sale (realtors wanted a judgment), was awarded expenses and legal fees. (I liened the house, and had to sue again when she refused to sign agreements of purchase and sale.) Had to return to court three times, with mounting legal fees, and, facing contempt charges, she agreed to award a power of attorney so I could sign in her place. Despite her intransigence, I was only awarded a fraction of my additional legal fees, on the basis that that's all she could afford.
$400,000 legal fees for a defendant that (a) should have known better, (b) had the means to know better, and (c) has the means to pay them, are not unreasonable. In the Devil's Advocate example presented, I'm certain no judge would impose them: the standard of due diligence for an individual fighting a large number of possible infringers lacking the means for individual investigation are different for a well-funded organization that has the means to engage in detailed individual investigation. Further, if the take down notice included language to permit establishing a fair use defense, a suit in response would have been overkill: the judge would ask, "Why did you not claim a fair use affirmative defense and see if the problem was resolved before hiring an attorney."
Here, I expect the take-down notice was heavy-handed, and the matter not researched within the reasonable ability of the rights-holder.
In Liberty, Rene
There can be at least some argument for inequality in health care, but inequality in legal representation perverts the very idea of justice.
Regardless of how you stand of copyright, sending out automated DMCA takedown notices without having a human being at least review the supposed offending material is negligent behavior and should be punished.
Support Right To Repair Legislation.
I'm likely missing something, but I thought that pretty much any nonprofit use qualified as fair use. This is obviously distinguishing use (like using it in a home video) from distribution (like torrent).
Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
On the other hand, if the EFF doesn't get their attorneys fees, then they have to eat the cost of the work they did, and that doesn't seem fair either.
If almost two million dollars for sharing 10 songs is 'fair', then yes many multiples higher than $400,000 for lawyer fees is more than fair.
As the so called rights holders have been given a tool that allows them to ruin the life of anyone they choose for breaking no laws other than ones granted in that very tool, they need to be held just as accountable and responsible for their use of it.
If I go through all the work to get a gun permit and legally register a firearm, I seriously doubt the courts would agree with my "Oops, I didn't MEAN to shoot him" defense either (And rightly so.)
When you have the ability to have someones life ruined and turned into a form of capitalist slavery, nothing short of equal slavery or jail time (Apparently it is a deterrent now) is 'fair' for what should happen to those that use this tool improperly.
Any attorney bill beyond the lower of "actual" or "fair and reasonable" for the specific circumstances should be paid for by the attorneys themselves, or possibly the attorney's clients. In other words, if my attorneys gouge me, and I'm entitled to recover fees from you, you should only have to pay a "fair and reasonable" amount, or less if my attorneys were efficient.
$400,000 for a simple counter-notice? Way excessive.
$400,000 for a contested counter-notice or a boatload of counter-notices? That depends on the individual circumstances.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Have both parties present documentation on their legal bills. The prevailing party, having also won the fees receives the lesser of the two amounts.
Assume we have Joe vs MegaCorp and Joe's legal bill is $1,500 and MegaCorp's is $400,000.
If Joe wins and is entitled to fees, he gets his entire $1,500 (in addition to any damages). If MegaCorp wins, they get their damages plus the lesser of the two legal bills ($1,500). This promotes efficiency throughout the system.
Corporations will be incentivized to match their legal spending with the size of their "target."
Karma: SELECT `karma` FROM `users` WHERE `userid`=138474;
Why not shine a bright light on the whole process ?
Establish an independent review body.
The review body charges to review DMCA takedown requests before they can be submitted to court.
A fee of around $200 per DMCA application per target should be about right.
This is initially paid by the entity applying for the takedown, but is however considered as a "cost" when a final court verdict is announced.
The $200 fee should cover the costs involved in having the material reviewed by SEVEN independent publically acknowledged reviewers, with the decision being that of the majority.
In the event that a "you cannot file" decision is challenged, then this can go to court as a separate case, with the funds for the review body's defense having been raised as a part of their $200 application fee.
ALL of this review body's actions and financial information should be made available to all via the internet for review by anyone with questions as to the impartiality of the board.
I think your assumption that arguing and presenting those obvious points carry little or no value to the overall finding of the case.
There is a certain amount of human nature to continue to agree with someone that you have already started a pattern of agreement. If you can argue the obvious points of a case and get the judge/jury to repeatedly say "you are right about point 1", "you are right about point 2", "you are right about point 3", etc. Then it is much easier for the judge/jury to continue to agree with your points on those things which carry a greater amount of ambiguity and is left to their discretion. You may need to include some psychologists with your economist and game theorists.
"The first thing we do, let's kill all the lawyers" - Henry VI.
I wouldn't go THAT far, but certainly lawyers are an impediment to justice.
Why not go back to the old system that was in place at the time of Abe Lincoln, where ANYONE could argue a case on behalf of anyone. This cuts out the BS with the various lawyer's associations, etc., and lack of access because of $$$ issues.
It's happening anyway - 60% of all family cases have one side representing themselves. Far better if they have a friend who is more knowledgeable to argue for them, instead of either having to go broke paying a lawyer who, in many cases, simply can't do a better job.
And before all the idiots here go nuts and say "you don't know what you're talking about", I've got over 1,000 hours in the courts, arguing civil, criminal, and regulatory cases,
Most lawyers are a waste of money. Just ask any retired lawyer or judge.
Preparing motions and arguing cases is not that complicated. Any fool can do it. Oops, what am I saying - fools do it every day. And greater fools pay them to do stuff that they could do themselves with a bit of searching on the net.
The EFF actually made a claim for attorney's fees earlier in the case, and the claim was denied. The court found that a violation of 512(f) requires either actual knowledge that the material is not infringing or that the fair use be self-evident. Lenz v. Universal Music Corp., Copy. L. Rep. (CCH) P29,540, 8 (N.D. Cal. 2008). The court then found that the plaintiff had neither alleged facts from which actual knowledge could be inferred nor facts showing that the fair use was self-evident. Id. at 9. The plaintiff was given leave to amend the claim to correct these issues, which she did.
The amended version of the complaint alleged that Universal acted in bad faith and deliberate ignorance of fair use. Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1156 (N.D. Cal. 2008). It further alleges that Universal is acting solely to satisfy Prince's personal agenda. Id. Those allegations were held sufficient to deny a motion to dismiss the claim. Id at 1157. The court ruled that copyright holders must undertake a good faith consideration of fair use but they are not required to make a full investigation. Id at 1155-56. The court noted that cases of bad faith are likely to be rare. Id at 1155.
So the outcome here hinges on whether Universal considered fair use and decided in good faith that it did not apply. Normally it would be difficult to prove that Universal ignored fair use as a possible defense or considered it only in bad faith (e.g., had its lawyers tell it what it wanted to hear). The evidence would normally be protected by the attorney-client privilege or the attorney work-product privilege. In this case, however, the EFF won significant parts of a motion to discover such evidence. Lenz v. Universal Music Corp., 2009 U.S. Dist. LEXIS 105180 (N.D. Cal. 2009). Unfortunately, I can't find a link to the EFF's argument for this motion, so it's hard to say how strong their case actually is (e.g., whether they uncovered a smoking gun memo).
As for Mr. Haselton's extensive discussion of the best way to apportion the cost of litigation between parties I will say this: It is remarkable only for its complete lack of citation to or recognition of the numerous legal and economic studies that have been made of the subject over the past couple of centuries. It is the law and economics version of the phenomenon described in this XKCD comic and its accompanying alt-text.
Does a lawyer break down The costs of a deposition by which point it may argue for/against? Many or most of the costs would be similar whether disputing trivial points or not. The benefit to removing the trivial points would be a reduction in the time required for the case, which would have the indirect benefit of reducing attorney costs. Since we are entitled to a 'quick & speedy trial', removing trivial points is still valuable and should be a power of a judge when one side concedes them.
My suggestion is that The attorney costs sought for one side may not be in excess of ten times (five times maybe?) the cost of the other side. Neither side will want to shortchange themselves(generally), so the costs would not be 'hidden'. If someone seeks a frivilous lawsuit, The threat of ten times their own lawyers costs should still be an effective deterrent. For cases where someone defends themselves, look at the costs of government defense lawyers as the bottom of the payscale. Regardless this may have the effect of laywers dragging out a case to raise the costs of the otherside to improve their return. I would turn into a cost/benefit analysis of the lawyers to determine if their costs go down more than the opponents go up. Perhaps a modifier for every year a trial takes to reduce it further may be in order.
Ok, yeah, $400,000 is a pretty insane sum of money. But you have to feel at least a little schadenfreude at Universal having to pay this. After all, they're part of the music industry machine that has worked tirelessly to erode and obfuscate Fair Use laws. Most of these laws are random exclusions in otherwise restrictive copyright laws. Any time there's a push for a true proactive Fair Use bill... a Fair Use Bill of Rights that really needs to be written ... these guys are spending millions in lobbying money to such that down, pronto. So a little of what goes around finally did come around. I can't be even a little bit disturbed at this outcome... if the law were crystal clear, the bill would have been much, much smaller I'm sure.
Plus, if Universal's equally-ultra-expensive lawyers are at all good, Universal will spend even more money in legal hours trying to delay the payout as long as they possibly can.
-Dave Haynie
... is that reasonable? It's fine to make a claim for reasonable attorney's fees, but this really smacks of running up the score. Lawyers are supposed to not inflate their bills, no matter who is paying.
We are most certainly not talking about punitive damages here. Punitive damages happen as a result of a lawsuit, when a judge awards money from the defendant to the plaintiff because of some kind of bad behavior on the defendant's part. That's not at all what this is. This is purely asking the judge to award funds from the defendant to cover the actual costs of the legal work that had to go on to press the claim, as provided for in the DMCA. As far as I can tell, a lawsuit never even happened. And I really have a hard time believing that reasonable attorney's fees could amount to $400k for something like this - it involved a little research and then writing a letter. A friend of mine has been trying to get divorced for over four years, with regular attorney consultations, court appearances, etc, etc... and his total bill is about a tenth of this. Certainly we're talking about a much less high-power attorney here, but still - $400k is ridiculous, no matter how much you dislike the RIAA.
"...the DMCA says that the remedies are the counter-notice procedure *and* an award for attorney's fees."
That statement is descriptive, a listing of the options available. The verb "are" indicates that there is more than one remedy.
If the statement was intended to be prescriptive, requiring both actions, it would be stated as a single remedy, phrased "the remedy IS..." and then listed both with the conjunction 'and'. If the statement were prescriptive and stated to allow only one or the other, the verb 'are' and conjunction 'or' would have been used. If prescriptive and allowing either or both, it'd say 'are' and 'and/or'. Thus as stated, it is not prescriptive, rather is only an accounting of possibilities without any inference of inclusion or exclusion.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
An automatic fee of say, $100 000 should be awarded anyone who disproves a DMCA takedown notice. That way, companies like Universal may actually think twice before sending the notice, and lawyers will have an incentive to keep the system fair.
Move law into the private market, let private companies come up with the rules and methods of enforcing.
If I want someone beaten up, I don't very much care if they get a slap in the face, or a kick to the groin.
the consumer got something for free over the radio. and yet that paid economic dividends in orthogonal ways
i ma merely attacking the lie that selling files on the wide open web (an absurdity, if you think about it, but apparently many don't) is a defensible economic model
the issue with (now simply parasitic and unnecessary) distributors in the internet age is they have reduced themselves to attacking consumers. pointing to an agreement between creators and distributors behind the scenes in the pre-internet age is a tangential observation and simply means you don't understand the point i am trying to make
for giving their files/ airplay away for free, creators (or, in the age before internet, the distributors) are getting financial returns on that through real, valid indirect means. and that's the new economic model the internet has handed us for linking commerce and art
meanwhile, paywalls, the economic model of distributors in the pre-internet age, and trying to force that model on us in the internet age, is simply absurd and a failure to understand the fundamentals of the new situation. the only thing for distributors to do now is to simply die: technological progress has rendered them obsolete
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
1) "knowingly materially misrepresents under this section... that material or activity is infringing... shall be liable for any damages, including costs and attorneys' fees"
Understand the application of the word "knowingly" here - it matters. Knowingly in this context implies that the rights holder knows that they are misrepresenting the activity as infringing.
2) Fair use is not a black and white issue - it is very, very gray. There are four aspects to fair use and no single bright line rule that applies. Decisions may vary widely and because of this it may be difficult to show that Universal "knowingly" misrepresented the material as infringing.
Although the use in this case appears (to me) to be unquestionably fair use, Universal should be able to make an argument that they fairly believed their takedown notice to be legitimate. That said, I personally believe that the takedown notice was asinine and a slap on the wrist may serve to have Universal pay a bit more attention to their claims in the future.
I should point out that IANAL (though I am in law school) and none of the above is legal advice.
JAGga.me ----> Producing video games addressing emotional health and wellness issues affecting teens.
The corporations were in the room as the DMCA was being written. They thought
they were crafting the legislation in their favour.
Now the shoe is on the other foot; they find it's not quite so one sided.
The fix is obvious, but will not be taken. Change the fines for infringement
into something more reasonable and enforceable in say small claims court (say
average price of product at three local retailers + times three for damages + filing fee and/or attorney fee if court time is required).
At that point the corporation lawyers become junior or paralegals. People who
wouldn't waste time on DMCA takedowns they know are opposable. The desire
to go after a single product infringement goes away. But the incentive to go
after big (hundreds or more) bootleggers goes up.
(Not to make it *perfect*, but at least to make it *better*, mind)
When a DMCA takedown notice is sent, there should be a simple reply mechanism for the person that posted the material.
If the person agrees with the takedown, all legal proceedings can stop right there.
If the person disagrees, the case should be put before an independent Ombudsman, which is perhaps paid for by both sides. I estimate in most cases that Ombudsman would need maybe half an hour max for each case, and not keep lawyers and judges busy for days. And I would probably prefer a hosting site that has a "DMCA Ombudsman protection" for $1 per video or something like that.
After his decision, the party that does not agree with his ruling would still have the ability to sue before an court.
Sorry, but the attorney fees, how reasonable they are, if the other party owes them, and so on are a separate dispute arising out of the first dispute. Different case, different law suit.
By the way $400,000 for a case of that nature is not all that crazy, if a lot of resources where devoted to the case and assuming no one is padding their bills. A judge might give them a bit of trim here and there, but attorney fees larger than the value of settlement happen all the time.
Throwing $400,000 in legal resources at a company that big is like a fly hitting a windshield. It really does not slow the car down at all that much nor does it really disrupt the cars aerodynamics in a noticeable way. They need to be hit with something like $400 million in attorney fees and settlement cost. Something that will stick to the quarterly reports, and raise some eyebrows during a conference call.
Living in Chile
I'm not against file sharing, and I'm averse to the insane fines being handed out. I'm also antagonised by the media industry refusal to realise that business models have to change, and monopoly and control are not maintainable.
But, and here is my large but, just as I'm averse to insane fines at court level, $400,000 in lawyer fees? No matter what has been done, Its simply not acceptable to have such levels of charges. At the end of the day, at that rate, we are all losing in this insane legal armageddon. I don't especially like media companies right now, but I don't want them destroyed utterly in this any more than I want an end user to be. The only ones rubbing hands with glee in this would be some lawyers. Worse than this, we now have people able to set (its always been the way, but we are heading in insane directions) legal precident.
At the end of the day, even if we all think this is great, its enough to utterly sink companies, and we all work in companies, and we all need jobs and a life. We don't need this insane legal armageddon and its brutality now is reaching such stupid levels. I'd like to see just how the hell they reached 400,000 in fees.
We`re all equal
Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?
Nationalize all the lawyers.
EFF should be asking for $5,000,000. Screw Universal!!! If their lawyers are that incompetent, they deserve to be bled. If we all believe in that little fantasy of how "the market takes care of itself" then Universal would then penalize it's own lawyers for their screw ups. But we know that ain't going to happen to any lawyer so screw em and bleed em!
In France, the government sets a rate it thinks it is reasonable medical professionals to charge. For instance a GP should cost x and a heart surgeon should cost y. Now you are allowed to see any medical professional you wish, and they are allowed to charge what-ever rate they like. However, the government will only reimburse you at the reasonable rate. Let us say, for example, you need a liver operation. You can choose a surgeon that charges the standard rate and have free health service. Or you may be well off and choose a famous surgeon that charges twice the normal rate, but in the knowledge you will only have half of it reimbursed. The rate the medical profession charges reflect the market, most charging around standard rate as the majority of people want free health care but a smaller percentage charging more for the wealthier as they "want the best".
This will fit in well with the attorney fee reimbursement model. The State decides that a copyright attorney is worth $x/hour. The EFF chooses attorneys that charge the standard rate. If they win then justice was done at no cost to themselves. If they lose, then their additional losses are limited to roughly what they had spent themselves. MegaCorp may decide money isn't an issue and wants to hire the best to make an example out of the EFF. If they lose, they reimburse all of the EFF attorney fees. If they win, they get back what they would have spend if they had used average lawyers. The difference they knew they knew in advance they were going to have to write off. The attorneys submit to the court their timesheets for reinbursement. A cursory glance by the judge will easily spot if there is any exaggerated excesses.
It won't solve the problem of dragging out a court case, but at least you know upon losing there will be a reasonable cap on the winner's attorney fees. IndyMedia's attorney also knows he can continue at standard rate in the knowledge we will get a summary judgement for payment without trying to haggle to get all of his fees paid at the end.
Phillip.
Property for sale in Nice, France
This is just a money grab by the EFF. Somehow, I am not surprised.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
Uh, what's the tolerance on that 10% guideline? If my lab students turned in a report that said 27.9/279 is different from 30/270, I'd ding 'em a couple of points because, to one significant figure (which is all that is specified by writing "10%" they are indistinguishable.
Now, if it's specified somewhere as (1.0E1)% or 10.0%, those numbers are distinguishable. But somehow I doubt that a "rule of thumb" guideline is specified anywhere in that kind of precision.
Just wanted to mention, as a matter of routine, the Big Four behind RIAA: Warner Bros, EMI, Sony, Universal, or "WESU" for short.
I'm trying to give WESU a bit more mindshare so they can't hide behind the mask of the RIAA. Ok, back to your regular programming.
404555974007725459910684486621289147856453481154 in hex is "You sank my Battleship?"
[GPG key in journal]
Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
Yeah. If it really takes $400,000 in legal fees to prepare a DMCA counter-notice, then yeah. That's why you don't file frivolous takedown notices. That's why you make really, really sure that you're in the right before you file a notice. When you're filing legal notices it pays to make sure that there are no "accidents" involved.
I'm probably mistaken, but I don't think his royal badness had a problem with the music in the background, but rather the title of the video being the title of his song?
I don't see a problem with them wanting her to change the title of the video in that case.
Definitely agree that a full takedown is ridiculous, however.
It's a shame, as Prince is one artist to break free of the big music groups and produce for himself, but only to act the same as they do? Boo. Otherwise, he gets it right. Check out the 3-disc deal at Target for $11. Some great guitar work on mplsound and lotusflow3r
Man this whole article, comments, and related are all TLDR; I need a summary. Do I need to update my Linux kernel?
``This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?''
In as far as I understand the way things work in the USA, I think this is partially already in place. Fees are not automatically awarded, but rather only awarded for cases in which the outcome should have been obvious. That is, if I sue you, but it should have been obvious that I wasn't going to win, I can expect to have to pay for your fees. Conversely, you can jack up the bill as far as is necessary to win the case that I shouldn't have brought in the first place.
For cases that don't fall into this category, we can both expect to have to pay the fees on our respective sides. This gives us both an incentive to give our fees low.
Finally, there is a possible problem where a lawsuit is worth bringing, but one of the sides can't afford to pay the fees. For such cases, there are lawyers who work on a "no cure, no pay" basis, which means you don't pay them anything if they don't win the case for you. Supposedly, if you win the case, you are awarded enough to be able to pay them.
Now, here is one idea to further limit costs: suppose we limit the fees to be awarded to the minimum of what either party incurred. That is, if I bring a case against you, and you insist on hiring 80 lawyers against my one, then you can expect to be awarded at most what I paid for my lawyer. Supposedly, since I paid that much, I considered it a reasonable cost. Whatever you spent extra is your own choice and comes out of your own pocket regardless. Just an idea to ponder.
Please correct me if I got my facts wrong.
And if the legal system encourages lawyers to rack up billable hours arguing other points, then the system is wasteful.
Go here, and skip in 2:44.
The lawyer that is requesting the 400,000 should be disbarred for charging excessive fees to the public.
Has anybody asked the musicians if they care about this? I thought this whole DRM thing was about the creators of the media.
Koalas. They're telepathic. Plus, they control the weather. -Margaret
I bet the rich people in Switzerland are very quiet about their wealth. If that policy was implemented in the USA, all we would read about is police dept's around the country "targeting" wealthy people. Maybe the Swiss police are better than that, I don't know. But the police here in the USA are definitely not capable of handling that amount of responsibility.
Can you imagine the corruption? Warren Buffett would have every state in the union just waiting for him to speed 1 mile an hour over the limit. Surely that isn't fair, is it?
i heard the EFF raped and murdered a young girl in 1990. sounds like they're giving Universal a taste of their own medicine.
A) When you signed on the dotted-line that says "I swear under penalty of perjury that the above is true and correct" you'd better have been damn sure everything you wrote was accurate. If not, a $400,000 fine could be the least of your problems.
B) Penalties require intent, not accidents.
C) YES. Even Indie musicians can be jackasses. If they're going around sending legal notices to everyone who uses 5sec of their songs, they too do indeed deserve a hefty fine. It certainly costs those on the receiving end, so you should be paying for you ill-conceived actions.
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
If there is a question of something being fair use then you shouldn't be sending a DMCA take down notice. What you should do is contact the poster or have the ISP forward a letter to the poster questioning their use and initiating a discussion with them rather than sending legal threats (that's what a DMCA notice is).
The law is clear, the take down should ONLY be used where you are 100% sure that you hold the copyright and the use is infringing. I don't have any sympathy for someone that's sending out blanket DMCA notices without oversight or thought. Currently companies are sending notices on stuff with names that are similar without even verifying content and there needs to be punishment for that, even if the route is lawyer fees through civil damages. A few examples and these companies will be far more careful in verifying their rights before sending out DMCA notices and maybe we can return some civility to the process. There has been far too much abuse of the DMCA notice, even where there was no copyright ownership and someone was trying to get embarrassing material removed. The perjury statue on DMCA's needs to be expanded and civil statutory damages added for abuse. Until there is a threat of costs for abusing the process it will continue to be abused.
Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?
Fuck yes it is. Do your goddamn homework. This is obviously serious shit you are dipping your toe into - make sure you take the time to actually do it properly.
in girum imus nocte et consumimur igni
And the danger of attorney fee awards will prevent entities (including artists) from abusing the DMCA (even more) and encourage them to actually review their accusations to see if they hold up to the light of fair use or not.
Chas - The one, the only.
THANK GOD!!!
There is a way to cut the fantastic number of hours that lawyers rack up. But an American populace marinated for almost a century and a half of "capitalist" propaganda would not, could not think of it.
Institute salary and wage controls for lawyers. Chop 'em down to mortal size. Pay them what a file clerk would make, times two. Take out the incentive for infinite profits. (Come to think of it, ditto for doctors and CEO's and boards of directors.) Institute state law schools and subsidize the costs through taxpayers (some countries provide free education) so the burden of the education debt no longer serves as an excuse.
Problem solved.
We've no problem with controlling the wages of poor people by slaughtering their unions and pensions. Yet rich people are sacrosanct, 'cause everyone hopes to be rich and untouchable someday.
Don't abuse the DMCA.
There is a definite chilling effect arising from the indiscriminate use of takedown notices on Youtube, which can serve to effectively censor legitimate content by anyone who disagrees with it. The only way to prevent it is to attach some cost to this behavior.
...in this lifetime solution. Whatever legal services are brought to bear in pursuit of the case will be split in terms of work on the case. IndieA brings a lawyer. MegaCorp brings a team of 11 lawyers. At the beginning of the trial, the pool of lawyers is split and assigned to one side or the other. (you could draw lots or pick teams, since that's even more visually absurd) So IndieA now has 6 lawyers, and MegaCorp has 6 lawyers. In the case of ties, the extra always goes to the defendant. (dunno what happens at 1; that would strongly discourage lawsuits, but perhaps too much so? It would be very effective at protected people with no means for civil legal defense)
You are financially responsible for any lawyers you may bring, (not sure about this, but let's play it out?) but you do so with the knowledge that you may also be helping your opponent by hiring more laywers. This encourages simple solutions with a minimum of lawyers. It makes it more sporting, too; how good of a lawyer do you want to hire? A good lawyer should be able to argue either side, no?
Yes, this is a bit of an outlandish idea, but I'd love to hear improvements, revisions, etc. I understand full well that this may not be practical in certain ways--I dunno what you do for expert witnesses--so internets spares me, but kick the tires.
The problem with attorneys' fees is not unlike the problem in the medical profession. They usually get paid per hour. This gives them incentives to drag cases out and not do their best work up front.
If you work faster, you can have more clients per time instead of having each client longer. Then, by your per-case cost being cheaper, you have a competitive edge and clients will prefer you.
So you make the same as if you work slowly, and have more customers banging down your door.
Where's the downside?
Very informative and balanced article. Thanks.
Now, any argument about the legal system usually raises two kinds of objections. The first is that the existing system "works". Well, in many ways it does, but everybody also knows that wealthy corporations and individuals enjoy a huge advantage in the court system, even though courts are supposed to treat all parties equally. So at least in that respect it doesn't "work" the way it's supposed to.
Shouldn't that read:
...but everybody also knows that wealthy corporations not individuals enjoy a huge advantage in the court system, even though courts are supposed to treat all parties equally. So at least in that respect it doesn't "work" the way it's supposed to.