One of two things must be true. Either this legal affirmation is simple enough to get that it doesn't actually reduce infringement much (and thus making infringement much more of a problem by removing any way of handling it other than lawsuits), or it's more complicated and creates a significant barrier to legitimate works being published.
No, you are simply setting up a false dichotomy. You are also ignoring the fact that, in a sane legal regime, if a large number of people legitimately want to post content to some place like YouTube, and that place is charging users directly for their services, as they should, then places like that can simply ask the sane legal regime to consider ways of letting people, for example, provide a single legal affirmation when they sign up for an account that covers all content they post under that account. Then the site could just have a reminder on the "post this content" screen that basically says "remember that you gave us a legal affirmation which makes you liable for any copyright violation, so if we get a claim of copyright infringement and it turns out it's legitimate, we're coming after you".
Legal systems have been dealing with reasonable issues like this since forever. A sane legal system is perfectly capable of evolving in response to new technologies, without compromising basic principles like "innocent until proven guilty", requirements to back up legal claims with evidence, handling claims through appropriate channels and not short-circuiting them, and fairness to all parties.
It's not a false dichotomy, it's an unavoidable trade-off. You haven't given enough details on your proposal for me to tell where this trade-off is made, but you can't avoid this trade-off.
Now you seem to be implying this affirmation is simply a contractual indemnification, which of course YouTube already has:
>To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless YouTube, its Affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Service.
>For example, the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so.
It's not clear to me from the rest of your comments whether you believe this to be sufficient. If it is, then clearly this isn't enough to prevent infringement, and killing DMCA as an option would make it significantly more difficult to remove infringing content. Which might be what you want, I don't know. But the trade-off is real.
>Legal systems have been dealing with reasonable issues like this since forever. A sane legal system is perfectly capable of evolving in response to new technologies, without compromising basic principles like "innocent until proven guilty", requirements to back up legal claims with evidence, handling claims through appropriate channels and not short-circuiting them, and fairness to all parties.
Legal systems have been making a series of trade-offs for a long time. The trade-off here is that sometimes content is removed for up to 14 days and then put back. In exchange for that, there's a way for rights owners to resolve issues out of court.
> Now you seem to be implying this affirmation is simply a contractual indemnification
A sworn statement under oath is not the same thing as a signed contract, so no, I am not implying this at all.
> clearly this isn't enough to prevent infringement
This is not "clear" to me at all. In the case described in the article, it is not clear that any infringement occurred. Casio claimed that the content was infringing, but the person who posted the content, and who has described in detail how and why he created it, claimed it wasn't. I personally believe the person who posted the content, not Casio, given everything said in the article; but it's not up to me, or you, or Casio or the person who posted the content to make a final determination on that if there's a conflict. It's up to a court of law.
In other words, your statement here is a great illustration of the problem I have with the DMCA: whether or not something is "infringement" is decided on the say-so of whoever complains, not by a fair legal process. You have simply assumed that every claim of "infringement" must be valid. You can't assume that.
> Legal systems have been making a series of trade-offs for a long time.
Yes, and the way they have been doing so in cases where you have two parties making conflicting claims is called a court of law. The parties come into court and argue their cases, and the court makes a ruling. That is what is supposed to happen.
What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it. That's not how the legal process is supposed to work. Particularly when the party that is getting its claim accepted as fact is the party with far more resources for a legal battle if there is going to be one, and the party who is forced to try to fight if they object is the party with far less resources to do the fighting. The law is supposed to protect the weak against the strong. It's not supposed to "protect" the strong against the weak.
I never assumed that. The DMCA never assumes that, which is why there's an entire section about counternotices.
The fact that YouTube receives many legitimate complaints of infringement is common knowledge. If you genuinely believe this isn't the case, look through their transparency report.
>What is actually happening under the DMCA is that one party gets its claim accepted as fact without question, and the other party, if they object, has to try to fight it.
All they need to do is file a counternotice, which is less difficult than the affirmation you're proposing, if you need a notary. And then if the rights owner doesn't like it, they need to go to court. Is the 14 day period for this to happen really that objectionable? If it was changed to 1 day, would you be ok with it?
> The fact that YouTube receives many legitimate complaints of infringement is common knowledge.
No, the fact that YouTube receives many complaints of infringement is common knowledge. How many of them are actually legitimate is impossible to judge since in many cases the content is now invisible and no due process was ever applied.
> Is the 14 day period for this to happen really that objectionable?
It's not a matter of how "objectionable" the 14 day period is. I object to the entire premise of the law in the first place, that someone should be able to make a claim that someone else is violating the law (that's what copyright infringement is), and have that claim acted on as if it were valid with no legal due process. Taking the content down based on the claim alone is acting on the claim as if it were valid. It doesn't matter if there's a way to reverse the action in 14 days, or even 1 day. Legal claims are not supposed to be acted on as if valid at all without legal due process.
Sure, there's plenty of abuse. That doesn't mean there aren't plenty of legitimate notices. I don't think you can seriously tell me you don't think there's a significant amount of legitimate DMCA notices. They can't all be abusive.
You're making what amounts to a deontological challenge to the law, which I reject. The question for me is which legal framework leads to the best results. If you're not trying to answer that question but are instead trying to make sure it comports with some rule you think laws should follow, then I'm not going to be able to convince you within the framework you're working in, and vice versa. But we should understand the difference in frameworks, if that's what's really going on.
Also, all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.
> all the DMCA does is create a safe harbor. It doesn't require the site to take down the content. They're free to do their own investigation and refuse to take it down, they just run the risk of being liable if they get it wrong.
And yet, even the corporations like YouTube who can most afford to do the latter--to both investigate claims on their own, and to defend their decisions in court--don't. So this alternative is meaningless in practice.
Also, you say elsewhere that YouTube is not the business of suing people frivolously (with which I agree), so a person who wants to post content might feel ok making a contract with them but not ok about being subjected to a lawsuit by some arbitrary company.
Now take this a step further: wouldn't it be nice if YouTube, a company who far more afford to do so than the average person, were to include in their contract that, if they find that an infringement claim against a user's content is invalid, they will keep the content posted and defend it, if necessary, in court, and not require the user to do so? Or, better yet, they could give the user the option: either the user signs up for the "YouTube will defend my content if they believe it's legitimate" option, and provides the legal documentation supporting their legal ownership of copyright for the content they provide; or the user checks the box that says "if anyone complains that my content is infringing their copyright, just take it down and leave it at that, it's not worth the trouble to me".
That, or something like it, is what I would expect to happen in a sane legal regime, where the law did not impose a one-size-fits-all solution on everybody, but treated everyone fairly and reasonably and allowed people with different preferences to find different solutions that suited them. But the DMCA "chills" all of that by providing even large corporations like YouTube, who least need it, a "safe harbor" that absolves them from having to do any work at all on actually figuring out how to meet the different needs of different users.
YouTube does, in fact, have a program to defend fair use, and they reject DMCA notices in those cases. But it's expensive and they can't do it in every case. Lawyers are expensive.
YouTube gets sued enough by idiots who think the DMCA safe harbor doesn't apply for whatever reason.
Anyway, I disagree that YouTube doesn't need the safe harbor. If they had to pay a lawyer for a minute of time for every DMCA request received, they'd lose money.
YouTube did innovate. They created a system for the largest content creators which automated complaints and created a special appeals process, which discourages DMCA complaints. They also placed protections on this program and ban people from it that submit too many false complaints.
> You're making what amounts to a deontological challenge to the law, which I reject. The question for me is which legal framework leads to the best results.
It appears that we do indeed have different fundamental beliefs about what the law is for, and I agree that we're not going to resolve that kind of basic difference here.
However, I do not think your implied dichotomy between applying "deontological" rules and judging by "which legal framework leads to the best results" is valid. For how do we judge which results are "best"? We can't just continue to judge by results, because that is an infinite regress. Sooner or later we must reach a point where we are simply applying some kind of deontological rule to prefer one state of affairs over another.
It is true that I am applying a deontological rule "earlier" in the process, so to speak, than you are in this case. That is because I do not think that "judging by results" actually helps much in cases like this, because we simply do not have enough knowledge to reliably compare the results we have, under the current DMCA regime, with the results we would have if the DMCA were just abolished and we went back to relying on previous law (which is basically what I propose), or if we adopted some other course. We can try to make plausible arguments, but in most cases, as in this case, we simply end up with opposing sides each making plausible arguments for their side, and neither one having a clear advantage in that regard. Which means we are just back to applying deontological rules at square one anyway.
As for the specific deontological rules I am applying, they are based on the same kind of skepticism regarding how much we actually know about how to govern, how to construct legal regimes, how to make public policy, etc. It seems to me that as a society we are vastly overconfident about our ability, or our legal and political leaders' ability, to craft policies that effectively address issues much beyond the very basic rules that are needed for any civil society--the basic common law crimes and civil offenses and the legal processes that have evolved over centuries to deal with them in a reasonable way. Even the concept of copyright itself is already going beyond those basic rules; but at least, before the DMCA (and before other laws that have done things like greatly extend copyright and patent terms and allowed for basically infinite renewals), copyright was dealt with using the same basic framework as other civil offenses like torts.
The DMCA, viewed as charitably as possible (note that I don't actually believe this charitable view is entirely correct, since I suspect the motives of our legal and political leaders as much as I suspect their capabilities to effectively address issues), was an attempt to craft a more "efficient" way of dealing with copyright than the traditional framework for civil offenses. What it has in fact done, IMO, is prevent any actual innovation in the field of how to reconcile whatever is valid in copyright law with the technological changes introduced by computers and the Internet and the additional things people now want to do as a result of those technological changes. (The DMCA is by no means the only failure in this respect, but it's the one we're focusing on here.) Instead of a large corporation like YouTube, which, as I've said, is in the best possible position to figure out how to serve users with various preferences about how they want copyright complaints to be handled, actually figuring out how to do that, they are just punting based on the "safe harbor" the DMCA provides. Instead of people figuring out by natural evolution what the best ways are to meet the various preferences of users and respect the valid copyright claims of content owners, we are all operating under a one-size-fits-all system that was imposed by lawmakers well before something like YouTube even existed. There wasn't even an urgent need--at least, not according to anyone but media corporations unwilling to update their business models--for any legislation in this area at all in 1998. But we are still having to live under it now, 22 years and many orders of magnitude more Internet users later. What kind of sense does that make?
I mean, my view of the DMCA is pretty similar. It makes it more efficient, and only the ambiguous cases are likely to actually end up in court. There's an issue with abuse, and I think strengthening the penalties for abuse and shortening the 14 day period to perhaps 4-7 days to account for faster speeds in the internet era can address that. I don't see the need to get rid of it completely.
> shortening the 14 day period to perhaps 4-7 days
I note that the Copyright Office report you linked to elsewhere in this discussion says (p. 6, top):
"[T]he current statutory timeframes to resume providing access to content following receipt of a counter-notice currently ill serves both users and rightsholders given current business models and the realities of federal litigation. Ten to fourteen days is both too long for legitimate speech to be blocked, and too short for a rightsholder to realistically prepare and file a federal lawsuit to prevent the return of infringing materials."
Shortening the first period addresses the first issue (somewhat), but not the second. The root problem here is the same issue I've raised elsewhere regarding DMCA notices, applied to counter notices: just as content gets taken down on receipt of a notice, without legal due process, content gets reinstated on receipt of a counter notice, without legal due process. So just as the notice process invites abuse by companies bullying legitimate posters of content that is not infringing, the counter notice process invites abuse by posters of content that is infringing.
In both cases, the system favors the strong (companies that want to bully people), or at least the illegitimate (posters of infringing content who don't think the legitimate owners can file a lawsuit within 14 days of a counter notice) at the expense of the weak and legitimate (legitimate posters of non-infringing content, and legitimate owners of content who can't move fast enough to protect it). That's not how the law is supposed to work.
I see examples of "innovation" in handling the DMCA process (and I note that the report says rightsholders claim these add unnecessary friction into the process, and that these changes "do not appear to be fully honoring" the DMCA requirements).
I don't see any examples of innovation in allowing different users with different needs and preferences to have different processes altogether.
I also note that the report overall is saying that the DMCA system is not working well.
