Shouldn't There Be Significant Punishment For Bogus Copyright Claims That Kill Companies?
from the seems-like-it dept
We wrote a detailed post about the latest Veoh ruling, in which Universal Music lost (again) in claiming that Veoh violated copyright law with its YouTube-like service. Of course, as we pointed out, the "victory" for Veoh is pretty meaningless because Veoh is dead. The cost of the lawsuit itself killed it. I've been thinking about this a lot lately, when you see stories like the federal government shutting down Dajaz1 for over a year, without having an actual case for infringement, and the similar case in Japan, in which the developer of a software program, Winny, had to battle in courts for more than five years, before the court declared that he was totally innocent.The harm done to legitimate businesses by totally bogus copyright claims seems like it should be a big deal. If the government is really concerned about jobs, rather than passing something like SOPA, shouldn't it be ramping up the punishment for bogus copyright claims that cause so much real harm to businesses? Eric Goldman, in discussing the Veoh ruling makes a similar point and puts forth an interesting suggestion for SOPA, to force companies filing such claims to put up a bond to pay, if they turn out to be wrong:
A partial fix to SOPA/PROTECT-IP would make rightsowners bear the cost of their overclaiming. Make them put up a $1 billion bond for the privilege of sending cutoff notices; and pay liberally out of that bond if the rightsowners get the law or facts wrong. Write checks to the investors and employees whose economic expectations are disrupted when rightsowners get it wrong. Write checks to the payment service providers and ad networks who turn down money from legally legit businesses based solely on rightsowner accusations. Heck, write checks to the users of those legit services who are treated as inconsequential pawns in this chess match. Sure, a $1B bond obligation with liberal payouts would turn cutoff notices into a sport of kings that only the richest rightsowners could afford, but perhaps that’s the way it should be. A rightsowner's decision to send a cutoff notice should be a Big Deal, the equivalent of going to Defcon 5, and not like sending holiday cards to distant relatives you last saw at Ethan's bar mitzvah.The supporters of the bill, of course, would reject such a suggestion out of hand, noting that it would be unfair and would make it harder for them to "enforce their rights." But that ignores the other side of the equation. If enforcing their rights involves completely destroying someone else's company, then, as Goldman notes, shouldn't it be difficult?
Of course, the chances of this happening are nil. During the SOPA markup, Rep. Jason Chaffetz actually put forth an amendment that didn't even go as far as Goldman's suggestion. It merely said that if you file a lawsuit under SOPA and it turns out that the site was legal, then the plaintiff should pay the legal fees of the defendant. This seems quite reasonable. And it was quickly shot down by SOPA supporters who complained that this was somehow unfair. I still can't figure out why only the copyright holders get to talk about "fairness," while the companies and websites completely destroyed by bogus claims apparently have no "fairness" on their behalf.
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Filed Under: copyright, dmca, pipa, protect ip, punishment, sopa, takedowns
Companies: dajaz1, universal music, veoh, viacom, winny, youtube
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Duh!
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Typo
You'll probably want to replace Their with There in the headline.
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Re: Typo
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Great idea. That way the small companies/artists who are most at risk have no access at all. Brilliant!!
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If a site is "dedicated to infringement" then surely it would be easy to team up with enough players to post a $1 billion bond and file suit.
If it's just one small company complaining, then the site probably isn't dedicated to infringement and shouldn't be killed off just because some small company overreacted...
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If it's just one small company complaining, then the site probably isn't dedicated to infringement and shouldn't be killed off just because some small company overreacted...
Why is Prof. Goldman talking abut "cutoff notices" in SOPA and PROTECT IP? Can you point me the sections you guys are talking about?
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If it's just one small company complaining, then the site probably isn't dedicated to infringement and shouldn't be killed off just because some small company overreacted...
OK. How much does my part of $1 billion dollar bond cost? Can I afford it making $50,000 horror flicks? Would the bond company allow multiple parties to be covered under one bond? If so, would Disney (or whoever) risk sharing liability with me if I went off on a tangent and exposed them?
It doesn't work on so many levels.
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It doesn't work on so many levels.
True - that's what happens when you try to "fix" something that is so fundamentally flawed at its root.
Just abolish copyright law. Much easier - no awkward special cases to consider.
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The interesting things is that I have seen the growth of this attitude most among people I know in "IP" professions.
I have spent quite a bit of time the past few weeks talking extensively with many of the friends and acquaintances who's professions deal with copyright (mostly musicians, but also a handful of writers, photographers, and a couple amateur filmmakers among others). The vast majority of people basically expressed two sentiments (although there were a few notable dissenters to these opinions in my discussions):
1) Copyright itself has done very little to help many of these people earn a living. Mostly copyright, if anything, provides them a commodity they can "sell" to big distribution chains for the opportunity to gain large scale exposure. As an author friend put it, "copyright is a 'free advertising/publicity' card I can use as collateral for a loan. Well if you ignore the fact I don't get my collateral back if/when I repay my loan."
2) Most of them (again with a few notable exceptions) didn't see file-sharing/"copyright infringement" as that much of a liability. In fact most of them see file-sharing as the only large scale distribution/exposure channel left to them that the entertainment giants have not been able to cripple, run out of business, or subvert that still allows them to keep their "rights" (and in fact most of them think this, not any sense of actual loss, is why these companies are so adamant about shutting these services down).
A large majority think that given the way the current system is structured they'd actually be better off if copyright was simply done away with. None of them think they'd be any more likely to make it insanely rich than under the current system, but most think they'd have a better chance to make a more reasonable living. As one musician I know said, "why would I care about abolishing copyright? I pretty much have to give it up to get anywhere now anyways, and at least I know someone executive or CEO isn't using it to make tens of millions of dollars for themselves while I make a fraction of that."
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That being said, lets take a hypothetical shot at amending SOPA to be somewhat balanced on the copyright issues and the potential for legitimate business destruction.
1. If a company files a false claim against a legit business, paying their legal fees is the bare minimum that would be acceptable as balance.
2. They should also be fined for the copyfraud. This fine should be no less than the maximum penalty for commercial copyright infringement of 150,000. I honestly believe that the minimum fine should be at least 10x that amount at 1.5M. A company abusing the law to stifle free speech or competition is easily worse than the most single malicious instance of commercial infringement and should be punished accordingly.
3. Furthermore, there should be the ability of the injured party to receive statutory damages to compensate for the business disruption and loss of income or potential income while defending the bogus accusation.
These three steps, to me at least, would be a good start at applying some balance to keep the remedies offered by SOPA from suffering rampant abuse. Perhaps the fines paid for instances of false claims could go to a legal fund to help defend small business and startups wrongly accused to keep them afloat if there is a strong case that they are innocent, but I'm not sure of the criteria that would be used to determine that.
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According to anecdotal evidence I've heard (from a major horror festival organiser), horror fans tend to buy 3-4 times more DVD than the average moviegoer. As a horror fan myself, I know this to be true for me, and most fellow fans I know OWN at least 50 DVDs they haven't even watched yet. At that budget level, you'd only need to sell a few thousand DVDs to break even, less if you manage to secure TV or other rights (not hard if your movie is any good).
If you can't make a profit at that budget level, you're *really* doing something wrong. Why should other companies be shut down to protect the fictional profit you expected from your piece of crap flick?
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If you can't make a profit at that budget level, you're *really* doing something wrong. Why should other companies be shut down to protect the fictional profit you expected from your piece of crap flick?
You are remarkable stupid. The mention of a $50,000 horror film was to draw a contrast between a small film company and a large studio. The entire point was in the context of the impracticability of participating in a $1 billion bond scheme.
Yet instead of even addressing the point you parrot Masnick's assertion that it's all about protecting fictional, self-entitled profit at the expense of other companies.
BTW, if it's such a no-brainer to make money like this, why aren't you doing it?
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Classy as ever.
"The mention of a $50,000 horror film was to draw a contrast between a small film company and a large studio."
So, the fact that I directly addressed your example makes me stupid? I understand the point you were making. I used the example you gave to address your "point", which appears to be that a low budget producer should be able to blame "piracy" when he fails to sell a product in a lucrative market with minimal outlay, rather than look at the real reasons why he failed. Free market solutions, or offering a better product, should not be considered while piracy can be scapegoated for your failure. Your usual bullshit, in other words.
"The entire point was in the context of the impracticability of participating in a $1 billion bond scheme."
Why is impractical for a producer of low budget movies to participate in such a scheme? They couldn't do it by themselves, of course, but that's not what Mike suggested.
"you parrot Masnick's assertion"
Yes, we all parrot each others ideas here. Nobody has reached the same conclusion independently or understands the reality of the situation in the same way. You got me.
"it's all about protecting fictional, self-entitled profit at the expense of other companies."
So... you're saying that you weren't expecting to make that $50k back just because you made the movie and felt entitled to profit without having to work for it? That the companies you'd attack in your misguided attempts to blame them for your failure wouldn't suffer expense if you were successful in attacking them? That there can't possibly be other ways to address the problems you suffered without having to go through the courts? Because that's certainly what it sounded like.
"BTW, if it's such a no-brainer to make money like this, why aren't you doing it?"
Because I'm not a movie producer. I'm one of the paying customers that make such producers money. If it's so easy to make money with a "rogue" site, a Techdirt-style blog or working in the massive Google conspiracy you people seem to think exists, why aren't you doing it?
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My criticism was solely on the unworkability of the the bond requirement. If someone is enriching themself on a product that I created to which they have no claim, why should I have to post a $1 billion bond in order to take action against them.
And to answer your question, (even though you failed to answer mine regarding the ease you claim in making money producing low budget films):
1. Profiting from infringing material is unlawful. I have more respect for the law and filmmakers to do anything like that.
2. I never said anything about the profitability of a Techdirt-style blog. In fact, Masnick constantly whines that he makes no money doing it.
3. "Google conspiracy".... "you people"... WTF?
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Yes, is it yours? You do seem to have difficulty comprehending what's in front of you in plain English.
"A small production company making $50,000 horror films is a different animal than Sony Pictures"
No shit, Sherlock.
"and cannot afford a $1 billion bond."
Are you too stupid to understand the fact that I said above "They couldn't do it by themselves"? Why would they not be able to participate in such a scheme in partnership with larger companies? Are you afraid to address this very simple point, or are you just too dense to understand the words I'm typing?
"1. Profiting from infringing material is unlawful. I have more respect for the law and filmmakers to do anything like that."
So do I. It doesn't stop drooling morons like yourself from saying I'm a pirate. I also don't recall a time where I, Mike or any of the regular commenters have suggested that infringement is not illegal, only suggesting ways in which that losses can be reduced or avoided. Somehow, suggesting better business models and suggesting ways to make more profit is supporting piracy.
Perhaps you would better spend your time addressing the actual words I type.
"3. "Google conspiracy".... "you people"... WTF?"
Regular complaints from AC idiots. Consider a login if you don't like being lumped in with those people, as it's impossible to tell you apart on the basis of your moronic arguments.
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I agree. We need to get rid of SOPA completely, not just make it incredibly expensive to use. Pair up with other people? The people with the billions of dollars aren't going to give the independent artists the time of day, let alone any bond money. Just kill SOPA, problem solved.
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But this liability would keep someone like Disney from nuking a site for using a clip or a picture. Without any liability they can just get sites ripped down willy-nilly. As SOPA stands (at least the last version I saw) the only liability to the person issuing the takedown is that they must be the rightsowner of the content they are issing the claim for.
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Do you not understand that foreign pirate sites laugh out loud at DMCA takedown notices? That's kind of the genesis of SOPA.
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Great idea. That way the small companies/artists who are most at risk have no access at all. Brilliant!!
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two ideas
If the plaintiff can pass that hurdle, the defendant must then respond. The provisional judgements of the first phase have no weight; the plaintiff's arguments are open to challenge and counterargument, and the defendant may require that the case be assigned to a new judge.
2) If the court determines that the suit was clearly without merit from the start (e.g. obvious fair use), then it can strip the plaintiff of the copyright for the material in question; it goes straight into the public domain. And a plaintiff who turns out to have never held the copyright in the first place is really in trouble.
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DMCA
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hmm..
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I might take it a step further. If enforcing their rights involves trampling on the rights of others and destroying the businesses they create, then shouldn't it be difficult?
Let's me honest here, when it comes to copyright you are guilty until proven innocent. With very little proof or liability someone can make a claim that will effectively put a substantiation burden on another person or company.
This.is.wrong.
Making it easier for this sort of thing isn't the answer. This will NOT protect the copyright holders. People are STILL going to pirate stuff. They will just do it in ways that are harder to find and even harder to make money off it. But, by taking the rights away from the consumers, and putting the liability on the content providers, it will break the very system that allows can allow artists to make money, if they care to learn how.
And there it is. We are providing a crutch to copyright holders. The don't want to learn how to make money, they just want people to give it to them. Giving them this crutch won't help, and will hinder them.
Honestly, as an artist, if you're biggest gripe in life is that your work became popular without you having to do anything but create it, you've got it pretty good. I don't see how not being seen and being lost under the big name starts is preferable.
If you are only in it for the money, you're in the wrong profession. This is true no matter what you do.
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Copy'right' isn't a right, it's a privilege.
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For every accusation from the rights holder that actually was proven to be false (as in, they didn't own the right to that property), then the rights holder MUST lose the right to one property - of the courts choosing, and then those rights are transferred to the person or party that was falsely accused.
This would give all rights holders, such as anyone under the MPAA or RIAA, tons of incentive to be %100 correct before filing anything. Imagine if you are WB, sent a copyright infringement notice out which turned out to be false, and had to give up something big, like the rights to Batman...you'd bet your ass that WB would be more accurate.
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Response to: Anonymous Coward on Dec 29th, 2011 @ 3:48pm
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Re: Response to: Anonymous Coward on Dec 29th, 2011 @ 3:48pm
To me it seems that most rightsholders never try to enforce their rights at all - so copyright law is pretty much moot for them.
Those who do do it so frequently that they are pretty much bound to make a mistake sometime. If they then lose everything there will be no copyurights being enforced at all.
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Re: Re: Response to: Anonymous Coward on Dec 29th, 2011 @ 3:48pm
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Sounds fine to me
The fact is that 99.9% of the sites that will be punished by SOPA won't even bother showing up in court. They'll scurry under a rock and hide like the cockroaches that they are.
Oh, I'm sure that the pothead professors at Harvard will continue to find someone who will fight, but by and large, the torrent data is generally quite good. It's much better than the evidence we use to convict murderers and so I'm sure it will stand up enough to be worth the effort.
So sure. Let's up the penalties on false claims. I've seen enough torrent feeds in the results from Big Search to know that finding real claims will be super easy.
In the mean time, I'll suggest that we cry as much for the poor companies that supposedly failed because of false claims as we cry for the content creators who supposedly lost billions in revenue. If we say that the content creators should get a new business model, then we can say the same for the Pirate Bay and others who might be trapped by "false" claims.
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Re: Sounds fine to me
A agree. Just like how all of the Hollywood actors, actresses and studios who will NEVER show up in court when they get punished under Sharia law. They'll just scurry under a rock and hide like the cockroaches that they are.
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Re: Re: Sounds fine to me
/obvious
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Fact is you can't prove who did the infringing RIAA admitted this not to long ago after their IP blocks where used to download tv shows!
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Re: Sounds fine to me
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The cost to the industry is minuscule, less than other industries comparable losses to things like 'weather' or 'shrinkage', which are also small enough to be managed as a cost of doing business.
It is completely and utterly ridiculous that they are allowed to hold our nation and out economy up like this for their own gains.
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Re: Sounds fine to me
This *is* satire, right?
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Re: Sounds fine to me
(1) They would be accepting that US law could be applied extra-territorially. Would likely piss off the government(s) of the country their servers etc and businesses are located.
(2) As has been said before the defendant in these cases has to prove "innocence", or at least, that no damage has been done so no liability has resulted. (That might be interesting to get RIAA or MPAA members to prove to accepted accounting principles what, if any, damage has in fact been done.)
The first point is the biggest reason some foreign company isn't going to book a plane to the States to defend themselves.
A lot of this, of course, means accepting ICE, the legislators and the A-G's word that this will never EVER be applied to domestic companies. (Which only a fool would expect.)
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Ay carumba.... Rojadirecta would beg to differ, Senor.
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Ay carumba.... Rojadirecta would beg to differ, Senor.
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Re: Sounds fine to me
Because they can't afford the legal fees, and the actions already taken under SOPA will have cut off their rveenue streams instantly.
Somehow, this makes them "cockroaches". You, I consider an idiot.
"I've seen enough torrent feeds in the results from Big Search to know that finding real claims will be super easy."
Apart from the moronic "big search" term, I wonder where your anger will be directed. Somehow, I think you'll just attack the wrong targets (the search engines that people use to find the torrents, rather than the people creating them), and so the effect on infringement will be effectively nil.
"then we can say the same for the Pirate Bay and others who might be trapped by "false" claims."
If only you'd realise that it's not TPB who will be targeted ...
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Re: Sounds fine to me
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Economic Power
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Re: Economic Power
Prosecutors do not put CEOs in jail. Not if they ever want to get elected governor someday they don't.
There are rules to the game, you know.
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Dude, I lost the game a long time ago:
When someone suckered me into believing in things like “justice” and “equal protection.”
They're a crock of shit.
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Re: Economic Power
They just see their company listed as too-big-to-fail and go back to work.
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Re: Economic Power
Only if they're foreign nationals in the wrong place at the wrong time when the government suddenly decides it wants to make a point.
http://en.wikipedia.org/wiki/David_Carruthers
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Australia has a good start
1) If you bring a civil suit and lose you are liable for the defendants legal costs. That is accross the board.
2) Misleading the court about holding interlectual property is considered purgery and has a minimum sentence of a short jail time.
So basicaly, if you bring suit and lose it will cost you a bucket load. This is also a good incentive to take on work probono for broke people that have a strong case, you realy can charge what you like when you do win.
If you lose because you didn't actualy hold rights someone is going to jail for a while. Does seem to hold the wolves at bay a little bit, but obviously not going to fix what SOPA may bring to the USA. Seeing the first USA style mass lawsuit for downloading stuff in Australia now - will be interesting to see if it turns out to be a profitable venture or not.
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Re: Canada does the same
Then again, it's hard to see a case of infringement getting past the clerk of the court in Canada on the word on someone who just says "I own the copyright, dammit!" without some evidence that they, in fact, do. Civil courts here really have no time for or humour with someone wasting their time.
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If corporations are people
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The point
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How to get it passed
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You can put lipstick on a pig, but it's still a pig.
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Defcon
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First off, if a rights holder is enforcing their rights legally, the other side is in the wrong, and thus there is no need for balance in this situation. Quite simply, if your business is predicated on using content without permission, you run the risk of getting caught and suffering the consequences.
Second, if the claim is false, there are plenty of ways to move forward legally, including pushing the local prosecutor to go with a fraud charge. If the party making the claim knew it was false, they have committed fraud. You also have all sorts of openings for civil suits, and in a good situation, a (smart) lawyer would gladly pick up your case for a percentage of the settlement that is sure to come.
Finally, why should the bar be raised for content holders any higher than it already is? If they have legal claims, and make those claims in good faith, what's the issue? There are literally thousands of valid, legal, and legit DMCA notices sent out every day, and that is still not enough to stem the tide of piracy and content mis-use. The game has been entirely tilted towards the site owners and pirates for a long, long time... don't you think it is time to relevel the playing field?
After all, as you said, the best business models should win. Not the best piracy models, just the best business models.
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you are saying that based upon this post you just made which clearly came from someone that is either stupid (which you insist you are not and we will give you the benefit of the doubt here) or on drugs, we can send the police over to confiscate all your property and hold it for a year just because a private citizen says you must be on drugs?
Once again you cloud the discussion by ignoring the point and trying to confuse the issue. SOPA has no provisions for false accusations. That is what this post is about making those who accuse stand behind their accusations and not be free to just shrug their shoulders and say oh well and then point at someone else.
Allegation DOES NOT equal guilt. It doesn't even indicate probable cause. You keep wanting to do away with due process because someone has to pay you for your failure to adapt your business models.
It won't work.
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See how it works?
I wonder if Mike would be so kind as to come up with numbers (say from Google, example) of the percentage of DMCA complaints that are true and accurate. I am guessing the number is so high, that Mike doesn't want to talk about it.
No, allegation does not equal guilt. Due process does not mean "keep infringing until we get this to the supreme court" either. Rights holders have rights, set forth in law, and they have the right to enforce them.
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Libel carries far more penalties than copyfraud,unfortunately.
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So the I say, "Oh my bad, I really thought he was on drugs."
Now its up to you to prove I am lying. Proving intent is pretty damn hard unless I happen to leave a smoking gun laying around (like an email saying I am going to screw you).
Now when a major corp issues a false takedown on me all they have to say is, "whoops, my bad. We issued that notice in good faith though." Now I get to fight with their team of highly payed lawyers in an attempt to prove they knew they were being sacks of shit. Being a startup who has had my revenue restricted for the 9 months it took me to get my damn site back I surely don't have the money to try and prove the UMG was willfully and knowingly lieing about me, even if they did leave a smoking gun laying about.
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You pretend that this judicial standard doesn't exist. It is a high bar. And a rights holder has to first prove the site meets that standard, then has to
petition the judge to take one or more of the actions. The enforcement is not automatic.
You are obviously too stupid to engage on this topic. Parroting the discredited arguments of other halfwits doesn't serve to advance the discussion.
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You're pretending that there aren't ways around this high bar, or that the industries that want this law passed haven't already figured out a way to bring it lower. All they need is the usual "but but but piracy" argument and you'll be flying to their defence. The bar won't matter. Look at what UMG's been doing to Megaupload.
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And this is why no one can ever talk to you. If we don't agree its obviously because we are all dirty thieving pirate fucks.
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Response to: Anonymous Coward on Dec 29th, 2011 @ 8:21pm
2) Then shouldn't that provision be included in SOPA?
3) You keep missing the point that the big media companies have consistently engaged in active copyfraud.
4) the best business models ARE winning - those whose companies are treating pirates like customers, rather than cash cows. Take a look at Christoforo, and contrast that with Valve.
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Response to: Anonymous Coward on Dec 29th, 2011 @ 8:21pm
2) Then shouldn't that provision be included in SOPA?
3) You keep missing the point that the big media companies have consistently engaged in active copyfraud.
4) the best business models ARE winning - those whose companies are treating pirates like customers, rather than cash cows. Take a look at Christoforo, and contrast that with Valve.
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Re: Response to: Anonymous Coward on Dec 29th, 2011 @ 8:21pm
2) The provision already exists under the law for making fraudulent claims, both criminal and civil. Why restate the obvious and muddy the waters about which law rules over the other one?
3) [citation needed] (and no, Techdirt is not a citation....)
4) The best business models aren't winning - the best piracy models are. A few examples "off the data curve" don't prove much of anything.
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Re: Re: Response to: Anonymous Coward on Dec 29th, 2011 @ 8:21pm
And yeah Valve is just some weird small time player, definitively not a model to emulate or anyone to pay attention to.
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Re: Re: Response to: Anonymous Coward on Dec 29th, 2011 @ 8:21pm
This is similar to saying "The vast majority of people are not child sex abusers, only a tiny percentage of people are, so we shouldn't worry about them", and is just as absurd. It just should not happen that a big incumbent can wipe out new threats with dubious claims. Recompense for those falsely accosted with such claims should be automatically linked to having the claims shown to be bogus during the process of them
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Defcon 5 - "You keep using that word. I do not think it means what you think it means."
So Eric Goldman wants a cutoff notice to be the equivalent of the lowest defense condition? I'm going to go out on a limb here and say he probably meant Defcon 1 (Nuclear war is imminent)?
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Are you too stupid to understand the fact that I said above "They couldn't do it by themselves"? Why would they not be able to participate in such a scheme in partnership with larger companies? Are you afraid to address this very simple point, or are you just too dense to understand the words I'm typing?
You're a dope. Each company would have its own risk profile. Even if an insurance company would bond an unrelated group of companies, what company in its right mind would assume the risk/liability for other entities beyond its control? Love to hear of a real world example. Until then, you're simply full of shit.
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I'm pretty sure fraud and extortion is still criminal offences.
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