Let’s go over the letter the Electronic Frontier Foundation sent to Congress regarding their concerns about copyright trolling.

source

30 COMMENTS

  1. Slapp law needs to cover copyright trolls. They are litterally shaking down people under threat of financial ruin as a "OR ELSE".
    Using the legal system as a gun while robbing you, even if you did NOTHING wrong, this is one of the reasons i can't defend the legal system for enabling this bullshit
    Done ranting

  2. I would love to see an analysis of the current version of the CASE Act. I generally support the EFF, but I’m very hesitant to take anyone’s word without reading the source (so to speak). Maybe an idea for another Saturday stream?

  3. These is a. Red for this but they messed it up. The point of Justice in these matters should be to make a person whole and not start a case mill. The idea of a master holding a video trial and the cost being minor is great for everyone but this is not doing that. They will still pass it as this current regime has failed to care about all Americans and Justice in favor or partisanship. That is why they want after net neutrality and this is just the second serving or that injustice meal!

  4. You know what I think would be fair? If someone is found to have illegally downloaded something (as opposed to being responsible for it's distribution, beyond the level that is inherent to the BitTorrent protocol,) should have damages capped at a multiple of the cost of having purchased it legitimately. I'd argue for a 2x multiplier, could endorse up to 5x, and would understand 10-20x. Lower the bar to entry, so you don't need to pay a lawyer $5000 to prosecute an infringer, to compensate. That way copyright trolling wouldn't be profitable, it wouldn't be life-ruining to kids, and would only be worth pursing as an en-masse thing.

  5. Dear Leonard, my comments are normally obtuse and abusive to the antagonist of the subject, but I feel I have something to say this time. It is the responsibility of media producers and distributors to use encryption methods to prevent copying or to accept that by not encrypting their data with propriety or legally protected methods that they are allowing a purchaser to copy their media and thus freely redistribute it. The future of the Digital Age is complete information freedom including media and personal information, and public ownership of the networks. This also means that "copyright" litigation as a deterent is not only useless but also hinders the progress of the Web's development and society's adaption to it and reduces motivation to develope encryptions by allowing copyright holders to use litigation as a deterent (which is a purely moral issue, and computer programs are amoral, and all digital media is a form of program, the majority of which use proprietary computer languages which copyright holders usually have no relation to). The monetary issue is also a moral issue and disregards the actual value of the product "stolen", except nothing is actually stolen, its copied and any idiot with a computer can copy almost anything, thus diminishing the actual value to the cost of copying, which is pennies, not six figures. So, litigation does not work as a deterrent, the product as a physical consumable product is worthless, and the value of intellectual property is purely a sentimental issue, and the potential payoff for litigation discourages encryption and encourages surreptitious legal action for the moolah. There's a reason the USA and Canada have terrible net connectivity and the war on file copying is as reductive and painful to watch as the "war on drugs" and its $$$$$. Remove the money, decriminalize copying and producers will be forced to do what they should have been doing the whole time; spending money on proprietary encryption methods instead of litigation and since they have had the tech since the Blu-Ray – HD disc wars, the issue is motivations and not capability. I hope I made sense and my points arent convoluted, but inform if they are!

  6. "50 50 tug of war"

    Fucking US court system is broken.

    too slow, too expensive, ripe for abuse,
    and has no clue about how to process the SPIRIT of a law. only the LETTER of a law.

    ITS SO DAMN SIMPLE TO FIX!

    Require EVERY law to have a "spirit" or "goal" or "reason why this law exists" passage
    and anytime when a law is used in a case CHECK TO MAKE SURE THE USE OF THE LAW MATCHES THE SPIRIT OF THE LAW!
    if it is out of alignment then the judge should take special care to make sure the law is not being abused outside of its original intent.

  7. I've long thought that copyright (or much of it) should be criminal rather than civil. *

    What we have now is laws that are enforced only when doing so is profitable. Victims have to investigate and prosecute cases at their own expense.

    Unscrupulous trolls prey on defenseless (if not always exactly innocent) people and content creator victims, who are often working class small business people, having to choose between crippling financial harm if they pursue justice and crippling financial harm from infringers if they don't.

    Criminal laws are meant to protect us by deterring harmful behavior from happening in the first place, and criminal punishments are (supposed to be) proportional and appropriate to the severity of the crime. The state pays for police and prosecutors, so that the poor (supposedly) enjoy the same level of protection as the rich.

    I would argue that it would be an agreeable tradeoff to have less opportunity to recover damages if we could minimize infringement itself. It couldn't be worse than what we have now. What we have now is whole segments of the industry collapsing while the unscrupulous and huge corporations prosper. Copyright isn't accomplishing its intended goal. We've built a dystopia.

    Yes, I realize that there would be some complications. We would need an unambiguous statutory definition of fair use, for example. We would still need a mechanism for nuanced disputes that have one foot in contract law and the other in infringement. We need a way for citizens to discuss news and issues while preventing social media corporations from perverting that freedom by using their subscribers to launder stolen goods. Some parts are indeed complex. But most of this stuff is as simple as shoplifting.

    *What we now know as criminal infringement ain't even the same thing. It's just an oversize bludgeon for corporations to use.

  8. A growing number of people, particularly young people who've grown up with the internet, don't seem to see copyright infringement by private individuals as a moral wrong.

    So, if you believe that the law should reflect community standards, penalties for this type of infringement are rapidly becoming unjustifiable.

  9. The penalty to be imposed for copyright infringement really isn't relevant as most small infringers such as file sharing users don't know how serious it is. I think the problem is the high penalties are treating all infringements as if they are commercial, for profit acts such as people mass duplicating and selling DVDs and Blu-Rays vs. individual single copying for personal use, which should be treated less seriously than the former.

  10. Regarding your argument from 16:40 onwards, there is a difference between demonstrating how much the Plaintiff might have lost and whether they have lost *anything at all*.

    They should at least be able to demonstrate some kind of actual loss, surely, even if they cannot quantify it?

  11. "would X pay $Y for a copy, would Z pay…" – in my experience in majority of downloaded torrents there are 2 cases:
    1. They already paid and just pirate as a backup copy, e.g. if original medium got damaged or in some cases with games pirated versions actually work better; or like me – just want a different language than the one I've been locked into with official purchase (I'm looking at you, ubisoft).
    2. They wouldn't have paid a penny, they aren't THAT interested and only download "free" version to check if it's something they'd even like. Or if they already know they would – they just don't have the money to pay the international price the publisher is asking for. We're talking 0.25-0.5 of their monthly salary – not going to happen.

  12. As it stands right now it’s too easy for people/companies to abuse this system but I think I would be better if there was absolute proof of the individual accused and not base it on someone’s IP address. There could be 4 or 5 people using the same WiFi. And the should be a cap for the damages you can claim in the small court, like around 1000 as the highest. And if the accused loses the case it is treated as a fine. With higher penalties for multiple offenses.

  13. The EFF are usually right and in this case they are correct a CASE act could be good or could be bad, its it was identical to the federal courts only cheaper then great but as it stands now it would just make the trolls richer.

  14. I don't think it would be so bad if they just limited the maximum judgment value, make it something like the value of the product stolen plus a few hundred dollars in fees.

    copyright piracy only deprives the right holder of the value of the product while theft deprives the owner of the use of the product as well as the value and is therefore orders of magnitude worse.
    if someone steals your car then you can't use it or profit from it, you might have to take the bus to get to work or spend time filing police reports to get it back only to find out it has been torched or dumped in a river, while if they just steal a likeness of your car(imagine they scanned it and 3D printed a copy somehow) you can still use it although you lose the profit you would have made from selling it to them.
    one is much more disruptive to society and should be treated more harshly in my opinion.

  15. This CASE Act sounds like something Prenda Law might have written… I understand your reasoning about statutory damages Mr. French, so thanks for including that. At the same time however, I am hard-pressed to think of any movie that sells for $50., let along $30,000. Individual songs are most often priced at 99 cents. If Congress intends to set a small claims statutory amount, I would suggest $50. The other problems with the CASE Act still need to be addressed, but setting the statutory limit reasonable close to the average actual damages rather than the price of a new car, would be the quickest way to discourage trolls.

  16. Watermarking is a horrible practice, though. It makes you, a paying customer, receive a worse product than a pirate. Not the way to fight piracy.

    My main experience with it is on pdfs of RPG books. Which I like to edit to save printer ink and paper, and for all kinds of other reasons. Sometimes to fix their mistakes. Those publishers who choose to make me unable to do so no longer get my purchase.

  17. In all honesty, the problem does not seem to be this act, but it COMBINED with the principle of punitive damages.

    Over here, the Netherlands, you can only be found liable for the actual damages. In that context, a small claims court is fine, as we are talking a few hunderd bucks at most.

    (although over here there is an issue with companies whipping up legal fees, due to the legal limits for legal fee compensation not being placed on copyrightlaw, which are used as de-facto punitive damages. But thats another issue)

    Punitive damages are an interesting system in most situations, at the very least to cover the huge(!) time and energy investment a court case places on parties. But they should be linked to the case.

    5,6 digit damages (punitive or not) is retarded and exorbitant, no proof has ever been provided for said numbers. beside "Copyright math" which is more akin to marketing-math than calculation of actual damages.

  18. I get the impression that the dollar amount for punitive damages in copyright infringement is not an effective deterrent for actual piracy no matter what it's set at. So to my naive understanding, lowering the punitive damages per person could(would?) decentivize copyright trolling from smaller "businesses".

  19. I've donated to the Electronic Frontier Foundation before. They're the good guys. I also like the Comic Book Legal Defense Fund. Copyright law is a mess, and it no longer serves the public's interest. I echo what others have said: in the wake of how easily data is now exchanged, copyright law needs to be rewritten from the ground up.

  20. Only semi-related question: How is obscene material copyright-able in the first place?

    Speeding, which can, and does, *kill people*, routinely, everyday, is "deterred" with fines that don't come anywhere close to being able to buy a new/nice car with. The statutory damages of $150,000 for random people infringing a copyright is completely ludicrous with no connection to any reality. Punishing people with judgments several orders of magnitude higher than the copyright holder theoretically lost as a result of the infringements, is less, but still, completely ludicrous.

    I can understand producers wanting to be able to go after people copying their stuff without paying them, but innocent people should be able to recoup 100% of their attorney's fees, if not substantially more. Most people can't afford to defend a copyright case, period. The current system of bringing the threat of ruinously expensive litigation against people whether they've actually done anything or not is pretty screwed up.

  21. I run an openwireless.org open wifi connection for anyone one to use as I believe that the owness of prof needs to be the company wanting to sue and not the person who has the connection.
    We have many people stoping out front for 15 to 30 minutes at a time and have enven had a couple of people come to my front door and say that you for the open service as they needed map updates and ran out of mobile data. Even had a police car or two do the same while waiting for people speeding up my hill.

    Thank you for covering this Leonard.

  22. This administration is hell bent on destroying consumer protections with a wrecking ball between removing net neutrality, this, and several other things that they've done. They're going to do everything possible to make it easier for big companies and trolls to go after consumers and strip the consumers ability to defend themselves.

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