That is separate from the problem that the "new law" created by the court is being imposed ex post facto on actions you've already taken.
It means you don't know what the law actually is yet when you're trying to comply with it. That kind of uncertainty leads people to make overly conservative choices that make beneficial projects uneconomical, or just causes them to give up because it's not worth investing years of your life in something you don't know the courts won't unexpectedly blow apart.
And if you want someone to take input from the EFF et al then why should we wait until it's already in court instead of doing that in the legislature before passing a bad law to begin with?
> Yes, and then 95% of those go back down to pre-spike levels of interest.
But the fact that they did have a million users for twelve months may get them hauled into court.
> If they's the odd exception which has a massive sustained uptick for their service which promoted copyright protected works, now they can think about licensing and formalizing their processes to protect all stakeholders now that they're a success.
Again, you're assuming that success comes with popularity. If you're losing money on every user you can't make it up on volume.
There are projects operated by individuals with a large number of users that operate at a net loss. If you say to those people that they have to implement Content ID because they have too many users, those projects are dead.
And the projects that actually are successful would have high revenue, so the only projects ensnared by a user count limit but not a revenue limit are the ones that are barely making it as it is.
> Courts do not afford less due process to larger penalties. The cost is in the complexity; who owns the rights, what did they know about their claim, how easy was the mistake to make, etc. Proving this to a court that has no starting knowledge of what's going on requires money to compile information, prepare briefs, etc.
Yes, exactly, so if that process is used then the penalty would need to be sufficient to justify the victim in going through that process.
But now let me ask you this. How is it that we're willing to impose a prior restraint without going through that process but not a penalty for false claims?
Yes, this happens in all industries that have cases being litigated all the time. In some instances, areas of settled law are completely upended by new rulings that change the status quo and force people to spend money on complying with the new state of affairs.
Yes, it sucks, but this is business as normal. The tension between certainty and flexibility in the law is a longstanding one.
You want these elements decided at the court level because these elements change, and legislation needs to be good law for a looooong time, whereas a shitty ruling can be blown up in months (sometimes in days).
>But the fact that they did have a million users for twelve months may get them hauled into court.
If they had a million users on a platform that shares and promotes other people's copyrighted works without a license, I'd sure hope they figured out their IP strategy.
> If you say to those people that they have to implement Content ID because they have too many users, those projects are dead.
Why would they need to implement Content ID...? That's the nuclear option in the field.
Do you think a blog's comment section needs filtering unless it becomes a common vector for sharing copyrighted material? It doesn't.
The objective isn't to nuke small companies - it is to strike a fair balance between distribution and content creation. No one wants distribution dead.
And court decisions that make major changes like that are rare, exactly because they result in widespread burdensome changes to existing behavior that would have been less burdensome if what was required had been better specified to begin with.
If you pass a law that requires such a court decision to happen before anybody knows how to comply with the law, what is anyone supposed to do in the meantime?
Especially when many of the questions are obvious, not bothering to answer them is just punting because they know the answers will be problematic.
> If they had a million users on a platform that shares and promotes other people's copyrighted works without a license, I'd sure hope they figured out their IP strategy.
Everything with user generated content is "a platform that shares and promotes other people's copyrighted works" and they're intended to be licensed from the user/creator. That the platform has no good way to know when what the user uploads is unlicensed is the whole problem.
And if they didn't have some way to do that when they were small then they don't have it when they first become big either. If you need a solution before you have a million users then you need a solution before you have a million users -- and then we're imposing the same burden on the little guy as on Google, if the little guy ever hopes to become Google without promptly getting sued into the ground.
I also reiterate that user count is unrelated to resource level. An individual can operate a platform with a million users and make no profit from it, but impose a laborious content filtering requirement and that platform is gone.
That is presumably the sort of thing they're trying to protect with language about non-profits, but this is where the ambiguity bites us again. If an individual operates a forum as a labor of love where the ads break even with the hosting costs, is that non-profit or not? What if some years there is a "profit" of $200/year? An individual who doesn't want to be bankrupted by lawsuits is not going to enjoy rolling the dice there.
> Why would they need to implement Content ID...?
We don't know what they would need.
> Do you think a blog's comment section needs filtering unless it becomes a common vector for sharing copyrighted material?
Are blog comments not copyrighted material?
How is the platform supposed to know what is being shared there without reading it all?
> The objective isn't to nuke small companies - it is to strike a fair balance between distribution and content creation. No one wants distribution dead.
The objective of DMCA 1201 wasn't to keep farmers from repairing their tractors.
The issue is the divergence between their stated objective and what they did.