Mike, the "97% win rate" for businesses in arbitration is a red herring. That statistic applies to suits brought by businesses - usually for collections (which is why businesses love arbitration; it makes collections actions much easier).
It's not like consumers are suing to vindicate their rights and only succeeding 3% of the time; as the Public Citizen report indicates, consumers win those cases somewhere between one-third and two-thirds of the time.
This sounds like classic garbage-in, garbage-out analysis (although the liberal justices on today's court would certainly support the findings, given their antipathy for group speech and campaign speech).
But Skokie? Odds are it would come out the same today. Look at the Phelps case from a couple of years back, where an attempt to regulate equally offensive speech (the Wesboro Baptist Church nutbags) was found unconstitutional.
Most UGC sites can do notice-and-notice today and still take advantage of the DMCA safe harbors. It's what we do at Avvo. But we're dealing with a relatively small number of DMCA notices; I imagine it would be trickier to do at the massive scale of, say, YouTube.
However, and assuming this ridiculous notice-and-staydown proposal dies the death it richly deserves, what if a critical mass of sites openly agreed to follow a notice-and-notice process within the scope of the existing law? It could become a norm without needing legislative intervention.
What's little-appreciated is the fact that a substantial number of lawyers in the US don't know the first thing about CDA 230. Larger internet companies routinely receive ridiculous C&D letters like this, from (apparently) actual lawyers.
This is less a "demand" than someone not understanding how an organization works. The New Yorker has an active business in licensing its cartoons - for use on merchandise, corporate PowerPoint presentations, etc. If you ask that group for permission to use a cartoon for free, you will get the same answer every time: pay the licensing fee. There is nothing out-of-line or surprising about this. The New Yorker actually makes it easy and affordable for people to use its cartoons in this fashion, unlike many publishers.
What IS surprising, and what DOES speak volumes about our approach to property rights in this area, is that Levy asked for permission in the first place. If you know it's fair use, than use it and don't ask permission.
I really hope this works for them. But I'm not optimistic. I tried something similar, to obtain the right to reprint the wonderful "Book of Marvels" by Richard Halliburton. My son and read an old (1941) edition of it and wanted to share it with his class.
So we started tracking down the copyright holder. It took a lot of research and email; publishing houses often change hands, and many have very similar names. We finally found the person who could grant the reprint rights . . . and they simply weren't interested. Maybe it was too small of a request, but they couldn't be bothered.
It's frustrating that these back catalogs can be locked up so, especially considering how they could be made available via e-books or on-demand publishing at little to no cost (or licensed out to those who want to do so).
So best of luck on this effort - but it may take quitting the day jobs to make it fly.
A little perspective here: back in the late 90's, I worked for the largest wireless carrier in the SF Bay Area. One of my responsibilities was overseeing requests from law enforcement. Now, it's been 15 years, but I don't have any reason to believe the substance of what goes on here has changed:
1. We had a copious set of procedures that we followed for different kinds of requests - which come from every imaginable branch of law enforcement at the federal, state, county and municipal level.
2. We pushed back on law enforcement all the time. Every day. It's not hard to do.
3. Most of the time, information is only provided in response to a subpoena or court order. The egregious stuff - wiretaps, contents of communications, etc. - isn't provided unless very specific procedures are followed by law enforcement, including specific types of court orders.
4. The exception to this is the "emergency" requests where a warrant is not required. These are always location information - phone records can wait for an order or subpoena, and contents of communications must have an order. Law enforcement typically wants this info to follow up on a crime in progress; we dealt with it in several kidnapping cases. Again, we would routinely push back on law enforcement if it sought too much info or it wasn't emergent and very time-limited.
5. We only charged law enforcement for setting up wiretaps and pen registers (which again, we only did with a very specific type of court order) because those involved real costs to us each time. We viewed the rest - my time and the time of my subpoena compliance folks - as a cost of doing business. It appears from the NYT article that this remains the practice for carriers.
It's simpler than that, because fair use is never a defense to out-and-out piracy. This formulation would simply make fair use stronger in all of those cases where the permission/ownership culture seeks to limit uses that have no bearing whatsoever on the market for the original work.
Sampling is the most obvious example, but you needn't look far for others.
Here's an idea, at least on the copyright front, to get away from "fairness" and back to what copyright is supposed to be about: Modify section 107 so the fair use defense explicitly turns on prong 4 (impact on market value). If a plaintiff can't show a material impact on market value, it's fair use. Period. The other 3 prongs (amount copied, etc.) only come into play if an impact on the market for the original work is established. This would completely eliminate copyfraud and sampling cases.
Whether the images are full-size or not is only one part of the fair use analysis. But "let the owner of the photo determine use"? I think not. Nobody need ask permission before using a photo for commentary, criticism, parody, transformative uses, etc.
As a lawyer who hires other lawyers, this lawsuit bothers me, a lot. Not only because it's pointless (what do the lawyer-authors stand to gain?) and a dead loser on fair use grounds, but also because it exposes the navel-gazing attitude common in too many lawyers. They need to start thinking about their clients first.
Clients don't care about their lawyers' pleadings. We want cost-effective results. And if these lawyers are going to sue to make it harder for other lawyers to access their pleadings, all they're doing is driving up the cost and complexity and legal services. That sure as hell doesn't help their clients.
She can file anonymously, but that doesn't mean the court is going to allow her to go forward that way. In fact, I expect it will not, as anonymous pleading is rarely allowed.
Secondly, I suspect she and her lawyers see the "real name on the credit card" as the only way IMDB could have gotten her age. They better hope they're right, because if they're not this case will quickly get stuffed under Washington's very strong anti-SLAPP law. In which case her identity will be revealed AND she'll pay Amazon's legal fees and a $10,000 fine. That's not a happy ending . . .
The reason companies prevail 95% of the time isn't because arbitrators are inherently biased in favor of companies - it's because the vast majority of the cases that go to such arbitrations are essentially uncontested collections actions. And while the potential for arbitrators to have such bias is obvious, I've never seen any data suggesting it plays out that way.
In fact, in the cases people seem to be concerned about here (suits against the company), arbitration is actually more consumer-friendly, as it's easier and much cheaper than going to court. Sony's not concerned about those cases - which are few and far between - but rather the ability to use arbitration as a quick and cheap method for bringing its own claims.
No doubt the Weebly guys - likely young startuppers all - were pressured by Cooley's counsel into turning the info over, not realizing that a) they could simply ignore the Michigan subpoena and b) they didn't need to do anything with the CA subpoena until the motion to quash was resolved.
While it's sad that BART did this, it's also likely not illegal. Government agencies can impose reasonable restrictions on expressive activities on their property as long as the restrictions are content-neutral (as this was; it shut down ALL cell phone conversations). That's why you can't protest in a courtroom, hang leaflets in the halls of the IRS offices downtown, etc.
And as for the CPUC, BART isn't under their jurisdiction. First, BART likely wouldn't be considered a cellular provider, even if they have control over these facilities. And second, the CPUC has only the lightest regulatory authority over cellular providers. It can only regulate the terms and conditions of service (and there only slightly) unlike the full tariffed rate regulation it has over landline providers.
What's needed is some sort of "anti-SLAPP for copyright" or loser pays system so that people who bring meritless suits like this have to think twice before filing.
If she were at risk for paying the defendant's legal fees (and perhaps a stiff fine, as with some anti-SLAPP laws), maybe we'd see less crap like this.
97% Win Rate?
It's not like consumers are suing to vindicate their rights and only succeeding 3% of the time; as the Public Citizen report indicates, consumers win those cases somewhere between one-third and two-thirds of the time.
Skokie
But Skokie? Odds are it would come out the same today. Look at the Phelps case from a couple of years back, where an attempt to regulate equally offensive speech (the Wesboro Baptist Church nutbags) was found unconstitutional.
(untitled comment)
However, and assuming this ridiculous notice-and-staydown proposal dies the death it richly deserves, what if a critical mass of sites openly agreed to follow a notice-and-notice process within the scope of the existing law? It could become a norm without needing legislative intervention.
Lawyerly Ignorance of CDA 230
Re: Re: Re: Re: The lawsuit is solidly based on the law
Sure it can; here are a but a few ways:
"Lunatic"
"Sure to be dismissed on the pleadings"
"I can't believe an actual lawyer filed this thing"
(untitled comment)
http://www.yelp.com/biz/allan-j-panzer-od-pa-houston-2
Don't Rush to Judgment
Not a Legitimate Complaint
What IS surprising, and what DOES speak volumes about our approach to property rights in this area, is that Levy asked for permission in the first place. If you know it's fair use, than use it and don't ask permission.
Harder than it sounds . . .
So we started tracking down the copyright holder. It took a lot of research and email; publishing houses often change hands, and many have very similar names. We finally found the person who could grant the reprint rights . . . and they simply weren't interested. Maybe it was too small of a request, but they couldn't be bothered.
It's frustrating that these back catalogs can be locked up so, especially considering how they could be made available via e-books or on-demand publishing at little to no cost (or licensed out to those who want to do so).
So best of luck on this effort - but it may take quitting the day jobs to make it fly.
How it Really Works
1. We had a copious set of procedures that we followed for different kinds of requests - which come from every imaginable branch of law enforcement at the federal, state, county and municipal level.
2. We pushed back on law enforcement all the time. Every day. It's not hard to do.
3. Most of the time, information is only provided in response to a subpoena or court order. The egregious stuff - wiretaps, contents of communications, etc. - isn't provided unless very specific procedures are followed by law enforcement, including specific types of court orders.
4. The exception to this is the "emergency" requests where a warrant is not required. These are always location information - phone records can wait for an order or subpoena, and contents of communications must have an order. Law enforcement typically wants this info to follow up on a crime in progress; we dealt with it in several kidnapping cases. Again, we would routinely push back on law enforcement if it sought too much info or it wasn't emergent and very time-limited.
5. We only charged law enforcement for setting up wiretaps and pen registers (which again, we only did with a very specific type of court order) because those involved real costs to us each time. We viewed the rest - my time and the time of my subpoena compliance folks - as a cost of doing business. It appears from the NYT article that this remains the practice for carriers.
Re: Re: Fair Use
Sampling is the most obvious example, but you needn't look far for others.
Fair Use
Re: Ignorance
(untitled comment)
Clients don't care about their lawyers' pleadings. We want cost-effective results. And if these lawyers are going to sue to make it harder for other lawyers to access their pleadings, all they're doing is driving up the cost and complexity and legal services. That sure as hell doesn't help their clients.
Fair Use
Ending in Tears
Secondly, I suspect she and her lawyers see the "real name on the credit card" as the only way IMDB could have gotten her age. They better hope they're right, because if they're not this case will quickly get stuffed under Washington's very strong anti-SLAPP law. In which case her identity will be revealed AND she'll pay Amazon's legal fees and a $10,000 fine. That's not a happy ending . . .
Arbitration
In fact, in the cases people seem to be concerned about here (suits against the company), arbitration is actually more consumer-friendly, as it's easier and much cheaper than going to court. Sony's not concerned about those cases - which are few and far between - but rather the ability to use arbitration as a quick and cheap method for bringing its own claims.
And the class action waiver, of course.
Adult supervision needed
And "squashed"? Cute.
Not Unconstitutional
And as for the CPUC, BART isn't under their jurisdiction. First, BART likely wouldn't be considered a cellular provider, even if they have control over these facilities. And second, the CPUC has only the lightest regulatory authority over cellular providers. It can only regulate the terms and conditions of service (and there only slightly) unlike the full tariffed rate regulation it has over landline providers.
Make them pay
If she were at risk for paying the defendant's legal fees (and perhaps a stiff fine, as with some anti-SLAPP laws), maybe we'd see less crap like this.
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