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Universal, Pay Those EFFing Lawyers

CmdrTaco posted more than 4 years ago | from the they-can-afford-it dept.

335

Slashdot frequent contributor Bennett Haselton writes "The EFF is seeking over $400,000 in attorney's fees from Universal Music Group after Universal sent a DMCA takedown notice to YouTube, demanding the removal of a video posted by user Stephanie Lenz. Lenz had posted a video of her toddler dancing to a 30-second clip of the Prince song "Let's Go Crazy"; after Universal sent the takedown notice, the EFF sent YouTube a counter-notice on behalf of Lenz arguing that the video was fair use, and YouTube restored it. Now the EFF is asking the judge to award them attorney's fees for their work." Use your magical clicking device below to read many more words.

Section 512(f) of the DMCA says pretty clearly that anyone who "knowingly materially misrepresents under this section... that material or activity is infringing... shall be liable for any damages, including costs and attorneys' fees", which would seem to apply here; the EFF argues that Universal should have reasonably known that the video obviously constituted fair use. In a Law.com article about the case, attorney Kelly Klaus, representing Universal, countered that "Congress also said that there was another remedy, which is the counter-notice procedure, which is what happened here." But this seems to miss the point -- the DMCA says that the remedies are the counter-notice procedure and an award for attorney's fees. (Klaus's firm did not respond to requests for comment for this article.) Anyway, as EFF staff attorney Corynne McSherry points out, if there were no possible award for attorney's fees against copyright holders who make false accusations, then there would be no disincentive for copyright holders not to file frivolous accusations in the first place.

I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

On the other hand, if the EFF doesn't get their attorneys fees, then they have to eat the cost of the work they did, and that doesn't seem fair either.

The problem is that once you have a $400,000 bill on the table, someone has to pay it, which punishes one or both parties usually vastly out of proportion to any wrongdoing. ($400,000 is almost half of what Reebok had to pay when one of their lead-tainted bracelets killed a child.) Huge attorney's fees awards also limit access to the court system for plaintiffs who might have a reasonable case, but can't afford the risk of having to pay attorney's fees if they lose, and for defendants who might also have a reasonable case, but are under pressure to settle quickly to avoid the risk of a huge attorney's fees award against them.

This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?

Now, any argument about the legal system usually raises two kinds of objections. The first is that the existing system "works". Well, in many ways it does, but everybody also knows that wealthy corporations and individuals enjoy a huge advantage in the court system, even though courts are supposed to treat all parties equally. So at least in that respect it doesn't "work" the way it's supposed to. The second objection is that it's too hard to change the rules and traditions that are built into legal proceedings, so it's better just to work within the system. True, but that's not the question I'm asking. I'm posing it as a logical brainteaser: If you had carte blance to modify the way that legal disputes were held, could you do it in a way that respects the rights and interests of all parties and still minimizes the legal fees incurred? (Whether I'm right or wrong, my goal is to make this argument more interesting to mathematicians and game theorists, than to lawyers; otherwise, I've failed.)

From a game-theoretic point of view, you might argue that large attorney's fees serve a useful purpose by discouraging frivolous lawsuits. The problem is that the fees don't just discourage frivolous lawsuits but also non-frivolous lawsuits where there's a reasonable chance of losing. On the other hand, a person who is already broke would have little disincentive to file a frivolous lawsuit, since the worst that can happen is that they'd get hit with a huge award for attorney's fees and have to declare bankruptcy, which they might consider worth the risk for a small shot at a million-dollar payout. So assume that attorney's fees are not themselves the best way to deter frivolous lawsuits, and that avoiding large fees in general is still a desirable thing. How do you design rules to achieve that?

I think you could save a lot of money by enforcing a rule that a lawyer is not allowed to seek attorney's fees from the other side for arguing any points that the other side offered to concede anyway. So the incentive would be that if party A's lawyer concedes some point of fact or point of law, and party B ultimately wins the case and an award for attorney's fees, then party B is not allowed to seek attorney's fees for arguing the point conceded by party A's lawyer.

In all of my legal cases where the other side was represented by a lawyer who was getting paid by their client up front, it was clear from reading the other side's briefs (and my own lawyers agreed with me) that opposing counsel had spent a lot of time spinning their wheels and arguing obvious or irrelevant points before getting to the crux of the dispute. If their client wants to pay them for that busy-work, that's between them and their client, but if they had won the case and an award for attorney's fees, I would have objected that they shouldn't be allowed to charge us for time they spent arguing points that we would have given to them anyway. The hypothetical savings from implementing and enforcing this rule, are not trivial.

So how does game theory predict that the two sides would behave under this rule? Suppose MegaCorp is suing or being sued by IndieActivist. MegaCorp's first priority is to win, and if possible to hit IndieActivist with a huge award for attorney's fees to discourage other would-be IndieActivists. MegaCorp doesn't want to lose, but if they do lose, they don't much care about the attorney's fees award they would have to pay to IndieActivist's lawyers. In this scenario, they would be expected to concede very little, disputing trivial points in order to drag out the case as long as possible, hoping that IndieActivist's lawyers would run out of time or money and pressure their client to settle. In other words, MegaCorp would behave about the same as they would under the existing rules.

For IndieActivist, on the other hand, their first priority is to win, but they also care very much about not having to pay a staggering award for attorney's fees if they lose. So they would be expected to concede any points of fact or law, even if favorable to MegaCorp, if those points are so obvious that they don't think the judge would be likely to rule in their favor on those questions anyway. This way, even if IndieActivist loses and has to pay attorney's fees to MegaCorp, those fees would be limited to the time spent arguing the actual point of disagreement that formed the crux of the lawsuit.

Suppose, for example, that Universal had actually sued Lenz for violating Prince's copyright by using a 30-second excerpt of his song in her video. Lenz or her lawyers could have filed a brief conceding all the obvious points that they would expect Universal's lawyers to make: Prince was the holder of the copyright, the copyright had been filed with the Copyright Office, Lenz never sought permission for using the recording, etc. Very quickly, the whole case could be distilled down to: "Show this video to the judge and let them decide if it qualifies as 'fair use'." Any effort spent arguing any points beside that, is wasteful. And if the legal system encourages lawyers to rack up billable hours arguing other points, then the system is wasteful. Concede the obvious, and everybody's costs are kept under control.

This only partially addresses the problem of large attorney's fees, because it still leaves the fees that are generated in the process of arguing points that the other side wouldn't concede. Solving this problem is much harder, because while you can simply eliminate the work that's spent on arguing points that the other side would give to you anyway, you can't eliminate the work spent on points that are genuinely in dispute, you can only try to make that work shorter and cheaper. I've argued for my own fairly complicated remedy in a separate article, but my main point was that legal costs aren't driven up so much by the complexity of the law as by the ambiguity in it. The Windows programming interface, after all, is also very complex, but if you can write a clear description of what you want a simple program to do, you can often get a programmer to write the program for you for dirt cheap. In arguing a legal case, on the other hand, the number of possible outcomes grows exponentially with each point of ambiguity in the law where there's no way to predict how the judge will interpret a particular rule.

But still, even if you can't reduce the ambiguity in how a legal question will be interpreted, you can avoid a lot of unnecessary attorney's fees by distilling the case just down to that particular question. Is it fair use to use a 30-second clip of Prince's song in a video of a dancing toddler? Let the judge decide. But if that's the one and only point that both sides can't agree on, then neither side should be able to bill for time spent arguing about anything else.

Perhaps someone mathematically or logically inclined can come up with a better algorithm for avoiding the billing hours generated by arguing the obvious. I'm not entirely happy with my own solution, because it still allows MegaCorp to concede absolutely nothing, and to try and bleed IndieActivist dry by forcing them to argue even the most trivial points. IndieActivist's lawyer could be reimbursed for that time if they win and get an award for attorney's fees, but they might run out of money or patience before then. To counter this tactic, you could allow either side to seek penalties for Frivolously Arguing The Super-Obvious. If IndieActivist's lawyer wants MegaCorp to concede an obvious point and MegaCorp won't do it, IndieActivist could seek a FATSO penalty, and the judge could decide whether to award them that penalty if the point is really and truly obvious, without deciding on the merits of the case as a whole. The penalty doesn't have to be large enough to hurt MegaCorp, it just has to be large enough to compensate IndieActivist's lawyer for their time, so that MegaCorp can't run them into the ground by forcing them to argue every point unnecessarily. However, economic game theorists might think of some unintended consequence of the FATSO rule. Could MegaCorp flood IndieActivist's lawyer with a gigantic list of requested concessions, so that if IndieActivist's lawyer screws up and forgets to concede one of the points that the judge turns out to consider "obvious", MegaCorp could hammer them with a FATSO award too? It's hard to anticipate all the ways that either party might abuse a new rule of the game.

Meanwhile, under the existing system, while it may be unfair to Universal in some cosmic sense that they have to pay out $400,000 for sending one mistaken DMCA takedown notice, it would be more unfair to force the EFF to eat those costs, and in any case the DMCA does clearly allow for an award of attorney's fees. But it would be better for everyone in the long run -- especially for the EFF and the kind of relatively powerless clients that they usually represent -- if there were more ways to keep legal costs from spiraling out of control in the first place.

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335 comments

Safe Harbor Limits for Fair Use (5, Interesting)

eldavojohn (898314) | more than 4 years ago | (#30891432)

This suggests an economics / game theory problem: Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?

Not with copyright and fair use. Fair use is deliberately ambiguous [wikipedia.org] . This is the reason why huge legal bills can be generated over it. Because it is ill defined. No amount of logical, sane Markov modeled state diagrams could convince some people that they are now entering a state of expected loss on a case.

Allow me to present what will undoubtedly be a very unpopular viewpoint here.

"Let's Go Crazy" is a 279 second track off of Purple Rain. Most Copyright lawyers consider 'safe harbor' for fair use to be one tenth of a song or, if longer than five minutes, thirty seconds (even Wikipedia [wikipedia.org] implements this). In a very pedantic analysis, had she used 27.9 seconds of the song instead of the quoted 30 then there would be no grounds for take down, let alone a court case.

Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

I'd like to see Universal burned by their mechanization of this process but there's your unpopular defense of having to take this to court based entirely around popular 'safe harbor' limits and deliberate ambiguity of the law. And I guess this could be seen as Universal having to try to draw the real line with precedence for court case established 'safe harbor.' Universal could fear popular 'safe harbor' limits expanding if they don't fight these things.

"knowingly materially misrepresents under this section..."

The question is -- given the above -- were they really?

Re:Safe Harbor Limits for Fair Use (5, Insightful)

paiute (550198) | more than 4 years ago | (#30891806)

Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill and I will put some kind of human at Control Gate C who will put a stopper on the mindless sharks in my legal department who would sully my business' positive reputation by suing dancing toddlers.

Re:Safe Harbor Limits for Fair Use (5, Insightful)

Scutter (18425) | more than 4 years ago | (#30891992)

Now lets say you have a huge catalog of songs you'd like to defend. You're a big mega corporation so what you do is you hire developers to analyze songs for fingerprints and -- funny how pedantic algorithms get to be -- submit anything over the 'safe harbor' limit to Control Gate C (that being the legal arm which churns out thousands of take down notices).

If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill and I will put some kind of human at Control Gate C who will put a stopper on the mindless sharks in my legal department who would sully my business' positive reputation by suing dancing toddlers.

As would I, which is probably why neither of us are (or ever will be) CEO of a mega corp.

Re:Safe Harbor Limits for Fair Use (3, Funny)

dwandy (907337) | more than 4 years ago | (#30892042)

If I am the CEO of a mega corporation, then I know the value of good will to generate goodwill...

citation needed.

Re:Safe Harbor Limits for Fair Use (1)

Lumpy (12016) | more than 4 years ago | (#30892534)

how about firing the lawyer, and then suing him for all potential lost revenue. I personally prefer public stockades where we can go and physically assult them with rotten fruit and a big paddle, but I'm an old fashioned guy.

It was not just 30s (3, Insightful)

Nicolas MONNET (4727) | more than 4 years ago | (#30891986)

The song was barely audible, so much so that I (and I guess many others) wondered how they found out.

Re:It was not just 30s (2, Insightful)

jgagnon (1663075) | more than 4 years ago | (#30892336)

The song was barely audible, so much so that I (and I guess many others) wondered how they found out.

Or, for that matter, why they even cared.

Re:Safe Harbor Limits for Fair Use (5, Informative)

Toonol (1057698) | more than 4 years ago | (#30892018)

"Let's Go Crazy" is a 279 second track off of Purple Rain. Most Copyright lawyers consider 'safe harbor' for fair use to be one tenth of a song or, if longer than five minutes, thirty seconds (even Wikipedia implements this). In a very pedantic analysis, had she used 27.9 seconds of the song instead of the quoted 30 then there would be no grounds for take down, let alone a court case.

There's no basis in law for those figures. The law is deliberately constructed to NOT have those sorts of arbitrary limits. It's a mistake to be pedantic over a rule-of-thumb estimate that has no legal weight. There are cases where a full song would be fair use, there are cases where a fifteen-second clip would be infringement.

Re:Safe Harbor Limits for Fair Use (1)

Tim C (15259) | more than 4 years ago | (#30892558)

And who would decide things on such a case by case basis? I believe there is an institution created to do just that...

Re:Safe Harbor Limits for Fair Use (1)

Microsift (223381) | more than 4 years ago | (#30892040)

Or is it 27.9 seconds from the movie Purple Rain, my recollection of the Let's Go Crazy video is that it is a bunch of clips from the movie. Can a movie reviewer show 30 seconds of a movie that includes 30 seconds of a song playing in the background?

Re:Safe Harbor Limits for Fair Use (4, Interesting)

joocemann (1273720) | more than 4 years ago | (#30892452)

Laws are written by lawyers, voted in by politicians (80% of which are/were lawyers), and judged by judges who were lawyers.

Loopholes and vague wording are things that lawyers are GOOD at creating in our system. They are lawyers, they are supposed to be smart enough to make laws very clear; yet wherever you look, laws are written with loopholes and vague wording that permit loads of points of contention to which lawyers must be hired to resolve....

The saddest part of the whole construct being that it is impossible to remove without revolution, impossible to prevent with any form of government, and that many/most lawyers feel some form of 'good' for their part in the system. I'll never forget the wonderful response I got from a lawyer about my criticism of the participation of lawyers in obvious frivilous/wrongful lawsuits.... Her response was what I've heard many times, and never fails to amaze me: "I am a lawyer. It is the person I represent who is asking me to do these things. I am doing nothing wrong; I am doing my job. Blame the person I represent." Right (sarcasm). Like your participation in the whole thing has *nothing* to do with what most would agree to be a heinous act of harassment/blackmail. No... You've done nothing wrong... You're just the tool...

I'd like to compare it to the idea that guns don't kill people... people kill people.... and that would make sense (which is basically her argument), except for the glaring fact that in the lawyer's case, the gun has an educated and possibly moral brain of it's own and is able to freely choose whose hands it is placed in and what targets it would be aimed at, how much damage it would do, etc.

I recall she then argued that I'd be 'sucking her d***' (yes, it didn't make senese) some day when I actually needed a lawyer. This is horrible because of course I would want a lawyer when I actually *need* one. That would be, at least, a case where it isn't so obviously frivolous/wrongful --- a case where most people would agree a lawyer is needed. And so this is horrible because she thought that because I (or others) would *need* her someday, and that she convinced herself to be morally distanced from her participation in wrongful lawsuits, she ultimately expressed that she (lawyers) is of the requisite benevolent gatekeepers to justice.

Sure... lawyers can do no harm... (sarcasm). I wonder how many law school graduates creamed their pants when they saw how vague the Americans with Disabilities Act was when it passed. Clearly written laws give no room for lawyers because the people know what is expected.

The world's most expensive letter (5, Interesting)

jpmorgan (517966) | more than 4 years ago | (#30891484)

$400,000 for writing a letter? I like the EFF and I sort of agree that it's not fair they have to eat the costs of defending a fraudulent claim. But it was their choice to send the notice chiseled on a solid gold tablet.

Re:The world's most expensive letter (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30891626)

I dunno. If a single song is worth tens of thousands of dollars, it doesn't seem that far-fetched.

Re:The world's most expensive letter (3, Insightful)

BobMcD (601576) | more than 4 years ago | (#30891838)

Forgive me if you've heard this put better, but...

A manufacturing plant sees one of its production machines seize up in the middle of a work day, bringing the entire plant to a halt. Knowing they were in deep trouble, they call in the best repair technician they can get. The man arrives on scene, assesses the situation, and moments later produces a hammer from his tool bag. With one sharp rap on the side, the machine returns to life and the plant gets to go back to production. The technician leaves, promising to send an invoice later.

The original invoice arrives and reads like so:

Emergency Equipment Maintenance - $2000

The accounting department is, understandably, disappointed by this amount and presses back for a 'detailed invoice' that can describe how the amount of $2000 was determined. The technician was only happy to oblige:

Hitting the seized machine with a hammer - $1
Knowing where to hit it - $1999

So while the cost of writing a letter is insignificant, the cost of being an attorney, running a firm, and generally being available to take up this sort of case is likely not so trivial. We could compare similar firms' rates, but stating that 'attorneys charge a lot' is sort of a non-starter.

Re:The world's most expensive letter (3, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#30891994)

$400K is more than ten times the median annual salary in the USA. You can hire a competent lawyer to work for you full time for a year for less than that.

Re:The world's most expensive letter (4, Insightful)

mea37 (1201159) | more than 4 years ago | (#30892012)

The fact remains that when I hired a lawyer a few years back, he wrote two - count them, two - letters on my behalf, and the total bill was only a couple hundred bucks. The issue was considerably more complex than an "obvious" abuse of copyright on fair use grounds.

Note - I put "obvious" in quotes because I don't believe fair use as a defense is often all that clear-cut. This comes down to you can't have it both ways. If they claim the case is obvious enough that Universal was abusing the system - i.e. that the "obvious misrepresentation" clause comes into effect - then it must also be obvious enough that they shouldn't have racked up major research hours on it. That means they only get to bill for the time it took to literally write the letter.

They are trying to stick it to the man, end of story. To get a feel for how outraged you should be, ask yourself whether the EFF will charge their client $400,000 should the award be denied. If so, they'd be screwing the little guy; if not, then requesting the award is an abuse of the system.

Re:The world's most expensive letter (1)

Overzeetop (214511) | more than 4 years ago | (#30892192)

This happens all the time in civil suits. Generally, the plaintiff's atty will bill the client for reimbursable costs plus a percentage of the judgement. In this case, the firm may bill the woman for costs (printing, courier, telephone, etc.) which might come to a couple hundred dollars. In the civil world it would be a speculative suit on the part of the law firm. This is where the "rich" firms make their money - it's not in billing their "paltry" $200-300/hr rates.

Re:The world's most expensive letter (5, Informative)

nomadic (141991) | more than 4 years ago | (#30892062)

So while the cost of writing a letter is insignificant, the cost of being an attorney, running a firm, and generally being available to take up this sort of case is likely not so trivial. We could compare similar firms' rates, but stating that 'attorneys charge a lot' is sort of a non-starter.

As an attorney I can assure you there is no legitimate scenario where the EFF honestly had to expend $400,000 worth of work to write a letter. Maybe, MAYBE, $2,000 if you throw in a few hours of research, which the EFF shouldn't have to do considering this is what they specialize in. A top-of-the-line civil litigator bills maybe $600 an hour, and as much as we like the EFF people they are not top-of-the-line civil litigators.

Re:The world's most expensive letter (1)

BobMcD (601576) | more than 4 years ago | (#30892234)

Right, and the only point I was trying to make is that if we're making up imaginary prices (be they 2 or 400), then claiming they are 'high' isn't quite relevant.

Re:The world's most expensive letter (2, Insightful)

poetmatt (793785) | more than 4 years ago | (#30891944)

It's quite important that they get the fees for abusing the DMCA. Lots of companies have tried and with a case that is clear about it, could set an important precedent to stop people from just doing bogus DMCA takedowns all day.

Re:The world's most expensive letter (5, Funny)

Smallpond (221300) | more than 4 years ago | (#30892332)

$400,000 for writing a letter? I like the EFF and I sort of agree that it's not fair they have to eat the costs of defending a fraudulent claim. But it was their choice to send the notice chiseled on a solid gold tablet.

The RIAA made multiple copies of the letter.

$400,000 for what - one letter? (3, Insightful)

jimicus (737525) | more than 4 years ago | (#30891486)

Run this by me again.

EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

Re:$400,000 for what - one letter? (5, Insightful)

duguk (589689) | more than 4 years ago | (#30891530)

Run this by me again.

EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

I presume they're trying to make a point to the extortionate claims that Universal et all charge. Good on them. Hopefully Universal don't pay it and end up in breach of these terms.

Re:$400,000 for what - one letter? (5, Insightful)

HappyHead (11389) | more than 4 years ago | (#30892174)

Actually, I think this is very much related to the RIAA's over-blown claims.

I think they've filed this request with the intention of Universal protesting it, calling the fees outrageous, and doing all of the research for the EFF on why fees that large are wrong in order to get them stopped.

Then the EFF can take that case work, and apply it in the next RIAA trial they're involved in, since in the US, a lot of law is built on precedent, and that would make a very useful precedent indeed.

  • 1: Universal (RIAA member) gets fees chopped down massively
  • 2: RIAA sues some college kid and wins massive awards including overblown attorney fees
  • 3: EFF presents case precedent from RIAA member indicating those fees are excessive
  • 4: RIAA fees get shot down too.

Re:$400,000 for what - one letter? (1)

HeckRuler (1369601) | more than 4 years ago | (#30892324)

I'm all well and good with the point they're trying to make, but it doesn't quite justify excessive pricetags.

"We're making a point here, and this ludicrous fine which we're charging is supposed to send a message to the rest of the dirtbags" This is something that the bad people are supposed to say.

Re:$400,000 for what - one letter? (0)

Anonymous Coward | more than 4 years ago | (#30891618)

lawyers $100K
mental duress $100k
lost work wages and triple damages $200K

or anything else one can think of.

if the movie/song industry can charge and get outlandish money in the millions, why not the poor fair use client.

Re:$400,000 for what - one letter? (5, Insightful)

NFN_NLN (633283) | more than 4 years ago | (#30891620)

Run this by me again.

EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

More precisely it's counter-extortion. I agree $400,000 is excessive... I hope they win $10,000 or whatever the minimum is to make it profitable for the EFF to defend the common person. Most people would just fold and take down a fair-use clip rather than risk bankruptcy so the EFF is necessary.

Re:$400,000 for what - one letter? (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30891632)

Remember - these are punitive damages intended to discourage further fraudulent DMCA claims. You know, like the punitive damages of $x,xxx per song that the RIAA collects on a regular basis.

Re:$400,000 for what - one letter? (1)

Attila Dimedici (1036002) | more than 4 years ago | (#30891750)

Run this by me again.

EFF's lawyers charged $400,000 for checking to confirm that the video was covered under fair use then writing one letter to that effect? That's not legal advice, that's extortion.

You don't take into account all the time they spent thinking about writing that letter and thinking about thinking about writing the letter and then of course there is the time they spent talking with other lawyers about writing the letter.

turnabout (0)

Anonymous Coward | more than 4 years ago | (#30891850)

its fair play

Re:$400,000 for what - one letter? (0)

Anonymous Coward | more than 4 years ago | (#30891868)

The outrageous multi-thousand dollar lawsuits against individuals who have (often unknowingly) shared one or two mp3 files is no more outrageous than this bill. Taking the lead of the recording industry, maybe they should pay up $3000 for every time they are caught or faced be sued.

When it comes down to it, fight fire with fire. Until the music industry trades their nuclear war heads for something a little more civil, they deserve this crap.

Re:$400,000 for what - one letter? (4, Interesting)

betterunixthanunix (980855) | more than 4 years ago | (#30891914)

Hey, the RIAA claims that they need to deter downloaders by imposing excessive fees; this is just more of the same, but in the other direction. The EFF's demand for that much money is a deterrent to people who think that it is OK to abuse the legal system and issue unfair takedown notices. Hopefully, this will have the effect of shocking the government into action and reducing the damages in copyright cases (once they start targeting individuals, the damages should be much, much smaller), but I have a feeling that this sort of activity will continue for many more years.

Re:$400,000 for what - one letter? (4, Interesting)

inKubus (199753) | more than 4 years ago | (#30891938)

Well, to make it fair, the punative damages should be assessed based on the annual income of the defendant. Punative damages are the punishment for wasting everyone's time. If it was the little guy wasting Sony's time, they would then feel the same level of sting as if Sony was wasting the little guy's time.

They do this with speeding tickets in Switzerland--the fine is assessed as a percentage of annual income.

Re:$400,000 for what - one letter? (-1, Troll)

sjs132 (631745) | more than 4 years ago | (#30891954)

This is why the federal goverment should control the salery structure of all lawyers. Obviously they used the over-priced lawyer to type the letter.

If they CAP Lawyer saleries at somewhere in the $200K/Year range, then they would not have generated a $400,000 letter. At most they would generate a $68.50 for an hour of letter writing, and maybe 1 hour for research (gotta wait for the computer to boot, etc..) So the total lawyer fee under the new plan would be around $136, plus postage. That is assuming that the lawyer would work 365 days a year/ 8hrs a day, to give the hourerly salery of $68.50.

With the $400,000 current rate, the lawyer that wrote the letter should be earning $584,000,000 /Yr. YES, that is 584MILLION to write letters 8 hours a day, 365 days. Sounds just as bad as those banks CEO's... Hmm...

Of course they have to pay their taxes still... Who asked that? Tim, is that you?

Re:$400,000 for what - one letter? (0)

Anonymous Coward | more than 4 years ago | (#30892552)

This is why the federal goverment should control the salery structure of all lawyers. Obviously they used the over-priced lawyer to type the letter.

If they CAP Lawyer saleries at somewhere in the $200K/Year range, then they would not have generated a $400,000 letter. At most they would generate a $68.50 for an hour of letter writing, and maybe 1 hour for research (gotta wait for the computer to boot, etc..) So the total lawyer fee under the new plan would be around $136, plus postage. That is assuming that the lawyer would work 365 days a year/ 8hrs a day, to give the hourerly salery of $68.50.

With the $400,000 current rate, the lawyer that wrote the letter should be earning $584,000,000 /Yr. YES, that is 584MILLION to write letters 8 hours a day, 365 days. Sounds just as bad as those banks CEO's... Hmm...

Of course they have to pay their taxes still... Who asked that? Tim, is that you?

Why should a lawyers salary be regulated? The cost of attorney fees has less to do with the time involved and more with the skill of the attorney. Besides, doesn't capping a salary go against the free market economy that we claim to be so in love with? You can't just start capping salaries because then there is always a case to do it to another profession. What if people start saying that IT professionals charge too much? There have been many times that I can fix a client issue in less than 10 minutes, but that doesn't mean everyone could. Why should I take less money than someone with a lower skill level just because I'm better at it? That's the direction the capping argument is headed if you ask me.

Re:$400,000 for what - one letter? (1)

adamstew (909658) | more than 4 years ago | (#30892112)

how about $1,000 for writing the letter and the work involved in that. Then when they asked for that money, Universal declined. So they had to file a lawsuit which racks up much more legal expenses. So, $1,000 for the original letter (about 4-5 hours of an attorney's time), and $399,000 for the cost of pursuing the original $1,000 in court.

Re:$400,000 for what - one letter? (1)

steelfood (895457) | more than 4 years ago | (#30892124)

It cost take a lot of money to get those legal degrees in order to write the counter-notice. I mean, if you were a layman and your video got taken down by the DMCA, would you know how to produce the appropriate response (besides running around the intarwebs screaming your head off about the evils of the DMCA)? I didn't think so.

Re:$400,000 for what - one letter? (1)

canajin56 (660655) | more than 4 years ago | (#30892322)

Remember the argument as to why file sharers have to pay a million dollars for sharing one CD? Because you only catch one, but millions of people are doing it, so they have to pay for all the others, too, to be fair to the copyright owner! Lots of companies and firms send out LOTS of completely bogus DMCA notices, and the EFF deals with a large number of them. So, fair's fair, why can't they charge Universal all their legal fees for all of the bogus notices? They should also charge for all the lobbying they do to try to get the DMCA fixed! ;)

These are the only industries (4, Interesting)

MikeRT (947531) | more than 4 years ago | (#30891514)

that don't see deep cultural penetration of their products as an unqualified good. They could take a cue from Microsoft and learn that even piracy brings value by making your product be what's on people's minds in a desirable way. Yes, Microsoft may lose business, but they maintain marketshare. Likewise, a label whose songs are remixed in fan videos or used as background music in a YouTube video is keeping its product out there at no cost to itself, which at least keeps it in the minds of more music buyers.

Re:These are the only industries (3, Interesting)

betterunixthanunix (980855) | more than 4 years ago | (#30891678)

"Yes, Microsoft may lose business"

I am not even convinced that much is true. Is there any evidence that people who use unlicensed copies of Windows would have purchased a license had there been no unlicensed copies available? Is there any evidence that a person who downloaded a song from a filesharing network would have paid for their music had there been no filesharing networks available? These are very difficult claims to prove, even if they appear to make sense.

Re:These are the only industries (3, Insightful)

GeckoAddict (1154537) | more than 4 years ago | (#30891950)

As far as Microsoft is concerned, a pirated copy of XP is better than a legal version of Ubuntu. The last thing they want is other operating systems catching on, which would lead to less corporate use, and thus, less Office and Windows $.

Re:These are the only industries (1)

betterunixthanunix (980855) | more than 4 years ago | (#30892086)

Well that much is certainly true, although my point was more about the claims the various copyright lobbyists make about "lost sales" and "piracy."

Re:These are the only industries (0)

Anonymous Coward | more than 4 years ago | (#30891910)

Yeah, can you imagine if Microsoft had an army of lawyers sending DMCA takedown notices to everybody who posted a screenshot with one of their copyrighted wallpaper images? Or people who have videos that include MS sound effects? I wonder how much a Windows screencast license would cost...

dom

take that thought all the way (1)

circletimessquare (444983) | more than 4 years ago | (#30892230)

that is, creators dumping their content online for free

in effect, the same point as radio airplay: free advertising

then financial benefits come in the form of warm bodies showing up to your concert gigs, more fame (since there's no barrier to consumers enjoying your content), and then with enough fame, new ancillary streams of revenue like endorsements, personalized content, movie soundtracks, etc.

granted, this system will only reward a few, those who are truly fame worthy. not every artist will benefit from the free advertising. as if most artists benefit from the current system. the truth is that in all art, and this will always be true, no matter the distribution system, that only a tiny few are smash successes. but at least in the direct consumer-creator link, there's more "granularity": artists of marginal value to consumers still get a few bucks. while in the old distributor controlled system, the marginal acts simply wouldn't get any exposure, or any money. this is true even of some "just ok" acts. distributors decided in the old model, and their decisions were often fickle and without reason. plenty of good acts in the past didn't get a contract for really stupid reasons. at least with a direct consumer-artist link, plenty of mediocre to middling acts get good exposure still, and money still from warm bodies at live gigs. so rather than a "cliff", that if you fall beyond a certain amount of fame, you get nothing, in a direct creator-consumer links, its a gradual falling off of exposure... i just realized i just wasted a lot of time explaining the concept of the "long tail"

http://en.wikipedia.org/wiki/Long_Tail [wikipedia.org]

$400,000? (1)

MozeeToby (1163751) | more than 4 years ago | (#30891578)

Did I miss something or is the summary just leaving something out? $400,000 to write a single takedown notice, which youtube complied to immediatly? Again, I haven't read the whole wall of text yet, but that seems like a very unreasonably number for that kind of service; you have to wonder if the cost would be less if they weren't expecting to recoup the fees from Universal.

Required two-week downtime (1)

tepples (727027) | more than 4 years ago | (#30891654)

$400,000 to write a single takedown notice, which youtube complied to immediatly?

Part of the problem with the DMCA is that service providers such as YouTube can't comply to these notices immediately. The law requires service providers to wait at least 10 business days before putting the disputed work back up in order to maintain safe harbor. This especially affects disputed works that are time-sensitive, such as those associated with an election or a sporting championship.

blabla (5, Insightful)

Tom (822) | more than 4 years ago | (#30891580)

What a long rant.

The short of it is: Universal is one of those companies that appears to have absolutely no trouble asking for similar figures when it is them who filed the suit. And I'm talking both damages and attorney fees. Quid pro quo. You ruin people upload 240 seconds of your song, then be ready to be ruined yourself when you falsely accuse people over 30 seconds of it.

You can't have it both ways. Either these are the crown jewels and everything about them is so precious that your ridiculous fees and damages are alright, or this is mass-produced cheap crap with a net worth around a couple cents. Which one is it?

Crazy Ediie is back !! (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30891590)

And with a vengance, and new scam. Shysters. The scum are all the same.

Fair Punishment? (4, Insightful)

EzInKy (115248) | more than 4 years ago | (#30891612)

Why should the punishment for depriving a person of their right to fair use be any less severe than violating a copyright?

Re:Fair Punishment? (1)

betterunixthanunix (980855) | more than 4 years ago | (#30891776)

Probably because, as President Coolidge put it, "The business of America is business." Fair use by individuals on the Internet is not a profitable activity in terms of dollars, even though it is great for society. On the other hand, selling an authorized copy of some work that you have a copyright on is a very profitable activity.

So, yes, in the America we live in (the one controlled by corporations), it is worse to violate a copyright than to abuse the legal system in order to deprive a person of their right to fair use.

Re:Fair Punishment? (1)

paiute (550198) | more than 4 years ago | (#30891982)

Probably because, as President Coolidge put it, "The business of America is business." Fair use by individuals on the Internet is not a profitable activity in terms of dollars, even though it is great for society. On the other hand, selling an authorized copy of some work that you have a copyright on is a very profitable activity.

So, yes, in the America we live in (the one controlled by corporations), it is worse to violate a copyright than to abuse the legal system in order to deprive a person of their right to fair use.

All we need is some rampant nationalism and we are up Godwin Creek without a Fuhrer.

Re:Fair Punishment? (0)

Anonymous Coward | more than 4 years ago | (#30892430)

All we need is some rampant nationalism and we are up Godwin Creek without a Fuhrer.

Have you looked out the window recently?

Pay for service, not hours (1)

MBCook (132727) | more than 4 years ago | (#30891652)

The problem with attorneys' fees is not unlike the problem in the medical profession. They usually get paid per hour. This gives them incentives to drag cases out and not do their best work up front. After all, if you end the case fast, you don't get much money.

I've seen advocation from some (including in Forbes in a column by a lawyer) that hiring an attorney should be more of a flat fee model. Based on previous cases, your law firm should be able to guess how much it will cost to run your case. So you pay them $10k (for example) and they try it. If they are good and get it done faster than expected, they've made more profit. If they underbid, they'll pay the price and have to eat a bunch of extra time.

Now you would have to have some provisions in there to revisit the fee every 6 months, or that fee only covers up to 2000 hours (on an expected 500 hour case), or something so cases that go to the Supreme Court don't earn the lawyer only $250, but it would at least give lawyers a better incentive to do good work.

That would lower legal costs, making fees returned for frivolous lawsuits lower.

As a bonus, if fees are lower, judges are more likely to make one side pay for the other's legal expenses in pointless cases.

Re:Pay for service, not hours (2, Informative)

nomadic (141991) | more than 4 years ago | (#30891800)

The problem with attorneys' fees is not unlike the problem in the medical profession. They usually get paid per hour. This gives them incentives to drag cases out and not do their best work up front. After all, if you end the case fast, you don't get much money.

As a lawyer I can tell you I hate billable hours with the heat of a thousand suns. Most lawyers do. The problem with a flat fee is one mistake and you could end up doing hundreds of hours of work for a very low amount of money.

Re:Pay for service, not hours (3, Insightful)

svendsen (1029716) | more than 4 years ago | (#30891936)

How is that different that any other professional job? If you screw up you eat the costs not me.

Re:Pay for service, not hours (1)

nomadic (141991) | more than 4 years ago | (#30892488)

How is that different that any other professional job? If you screw up you eat the costs not me.

What are you talking about? Plenty of other professional jobs charge per hour.

Legal insurance ? (1)

abies (607076) | more than 4 years ago | (#30892270)

There is a story about Chinese emperor getting ill and calling a doctor. After spending few weeks of not getting better and paying a doctor for constant care, emperor said "I will NOT pay you anything while I'm ill, but you will earn a gold piece for every day I'm healthy". In the story, emperor got better next day and doctor was NOT executed for cheating beforehand, but lived happily afterward, keeping emperor healthy.

We got the same concept today and it is called health insurance. You are paying constantly, but they are covering medical costs (and often they pay your salary in the period you cannot work). It is broken in most countries, but somehow insurance companies trying to keep hospital costs roughly sane for them.

Wouldn't something similar work for legal services? Or is it already there in form of state-given-lawyer and everyday taxes which are paying for him?

I'll save the day (for a modest fee)! (1)

shabtai87 (1715592) | more than 4 years ago | (#30891710)

It's like a superhero stepping in to save the day... and then demanding monetary compensation. Except $400,000 sounds more appropriate if it was someone's life or limb on the line rather than a video of a kid dancing.

$400,000 for 400,000 videos (1)

tepples (727027) | more than 4 years ago | (#30891978)

It's like a superhero stepping in to save the day... and then demanding monetary compensation.

Compensation from the villain? Of course. Unlike Batman, EFF doesn't have Wayne Enterprises to back it up.

Except $400,000 sounds more appropriate if it was someone's life or limb on the line rather than a video of a kid dancing.

Even if it's to set a precedent likely to affect 400,000 videos of a kid dancing?

Use the RIAA award money (1)

192939495969798999 (58312) | more than 4 years ago | (#30891716)

Universal has RIAA artists, so just use the money RIAA collects from their crazy-high piracy fines to offset any crazy-high fair use fines.

IndieArtist says.... (2, Interesting)

ak_hepcat (468765) | more than 4 years ago | (#30891746)

From the standpoint of (an) IndieArtist -- They don't have a team of lawyers or sub-sub-contractors trolling youtube videos looking for so-called infringments.

So the only way that they would find out is by somebody else reporting it, randomly stumbling across a video, or by purposefully searching for their song titles.

In any case, IndieArtist would have to read up on DMCA takedown actions and responsibilities, because TANAL. Hopefully, before sending out any such takedown requests, they've actually spoken to a lawyer-friend to get advice.

At the very least, they would have had to "done their homework" and viewed the videos looking for infringing materials. But again, the concept of infringement to IndieArtist may be subtly different: Propagating their song by fan-made tribute videos can only increase their exposure, so unless they're really trying to stop something from getting out of hand, chances are they're going to "let it ride," or at the very least, contact the poster of the video and ask them nicely to remove it, or hey! "buy the CD if you haven't already."

Re:IndieArtist says.... (0)

Anonymous Coward | more than 4 years ago | (#30891826)

From the standpoint of (an) IndieArtist --

In other words, your "music" - such that it is - suck pretty bad, and you mostly ply for free? Gotcha, I understand...

How is $400k possibly reasonable? (0)

Anonymous Coward | more than 4 years ago | (#30891764)

In what crazy universe does it take multiple lawyers hundreds of hours to file a DMCA counter-notice? I mean, $400,000 is enough to pay a team of 10 lawyers for a month of billable hours! How could they have possibly accumulated that much just to file a simple boilerplate letter?

At most this sort of thing should cost $1000-2000.

dom

Re:How is $400k possibly reasonable? (0)

Anonymous Coward | more than 4 years ago | (#30891870)

Google "knowing where to hit it"

Re:How is $400k possibly reasonable? (1)

adamstew (909658) | more than 4 years ago | (#30892286)

how about perhaps it was only $1000 to send the letter. But Universal refused to pay it. So they had to sue them for it. Now it's $1000 to send the letter and $399,000 worth of legal fees to pursue the original $1000. Knowing how the music industry loves their lawyers, I wouldn't be surprised if this ended up taking 10 month's worth of man hours to resolve this.

Hey, if 1 song is worth $40,000... (4, Insightful)

d474 (695126) | more than 4 years ago | (#30891790)

...then 1 attorney taking 2 or 3 hours of time to review the facts, compose the letter, and handle internal billing paperwork is surely worth $400,000. What goes around comes around. When grandma gets penalized millions of dollars for having her grandson download 20 songs over bit torrent, surely lawyer fees must be worth much more.

Re:Hey, if 1 song is worth $40,000... (0)

Anonymous Coward | more than 4 years ago | (#30891892)

Are you going to agree that a song is worth 40k or are you going to do an about face when it comes to the RIAA and the MPAA?

Equal and Opposite (2, Interesting)

Maximum Prophet (716608) | more than 4 years ago | (#30891818)

Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

This can be answered by creating a "Newton's Second Law of Lawsuits", where one legal maneuver can only be countered by a reasonably equal and opposite reaction.
i.e. If you as an independent musician, use your own time and stationary to send a letter, the defendant should do the same, thus can only recover what your time and materials are worth. If you hire a $400,000 legal team to send the letters, it's reasonable to counter that with a $400,000 team, thus you could recover your expenses.

If you really want to go out on a limb, the system could measure the amount of frivolous lawsuits were filed last year and introduce a multiplier in the equation. Thus if there were twice as many bogus lawsuits filed last year as there should be, the plaitifs could recover 2x legal fees, if there half as many, then they can only recover 1/2 of their legal fees. (Leave it up to the law school debate teams to determine how many bogus suits the system should allow.)

And the lesson here is... (0)

Anonymous Coward | more than 4 years ago | (#30891828)

become an attorney because that's where the real money is. Especially in the USA.

Re:And the lesson here is... (0)

Anonymous Coward | more than 4 years ago | (#30892502)

I meant lawyer!

And the lesson here is: become a lawyer because that's where the real money is. Especially in the USA.

Indie Musician vs RIAA (5, Interesting)

PieSquared (867490) | more than 4 years ago | (#30891856)

"Suppose you were an indie musician who sold your songs online..."

To be awarded damages you have to *know* you were filing a false claim. And at this point the difference between a self-represented indie musician (who accidentally flagged a single fair-use video in a long list of infringing ones) and a team of lawyers specializing in copyright law (who flag every video using any part of "their" songs, with no apparent effort to identify fair use) becomes important. One can argue that they missed some nuance of "fair use". The other really can't. Especially when they do it over and over again with no apparent effort reduce the number of falsely flagged videos.

The point of asking for penalties in this case is not to set a precedent of penalizing every mistakenly sent DMCA claim, it's to change the attitude of "we'll take down every possibly infringing video and let people who think they have fair use file counter-notices" into "hey, lets only file DMCA complaints against videos that are actually infringing."

EFF Overreaches... (0)

Anonymous Coward | more than 4 years ago | (#30891864)

The EFF overreached for excessive legal fees today. This generated headlines on obscure news sites far from mainstream eyes. The Judge will certainly reduce the award, if he doesn't throw the case out entirely because of the preposterous request.

Nobody really cares, and there won;t be film at 11:00.

However, this reporter is left wondering; what percentage of any settlement will the actual injured party, Stephanie Lenz, receive?

Re:EFF Overreaches... (1)

Dunbal (464142) | more than 4 years ago | (#30892374)

what percentage of any settlement will the actual injured party, Stephanie Lenz, receive?

      She will receive a coupon good for 10% off her next purchase of any Prince music from Universal...

Knowingly misrepresents (3, Interesting)

Hatta (162192) | more than 4 years ago | (#30891894)

I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

If you're an indie musician, you're probably not all that knowledgeable about what constitutes fair use. If you're Universal, with a battery of high paid copyright lawyers, you are much more knowledgeable. The standard is different.

$400,000 is pretty insane though for just drafting a letter. Where is that number coming from? I didn't see it in the linked article. How many lawyers worked on one DMCA counter-notice for how many hours?

Re:Knowingly misrepresents (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30891988)

$400,000 is pretty insane though for just drafting a letter. Where is that number coming from?

The number is pulled out of the same place the RIAA pulls their damage numbers out of... their asses. So there's something poetic about it.

Re:Knowingly misrepresents (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30892398)

Who are the retards harping on the $400,000 figure? Hell, they should ask for $500,000 or a cool million. After all, they're gouging UNIVERSAL, which is good, right??!!?? They're one of the evil corporations slamming the little guy making little fair use videos so pay back is a bitch, right?

I for one think it's about time somebody slammed a music conglomerate with ridiculous fees.

I bet you people claiming $400,000 is insane are the same idiots that drive under the speed limit in the passing lane.

hmm (3, Insightful)

nomadic (141991) | more than 4 years ago | (#30891932)

Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

You're missing the point, it wasn't "accidental," it was purposeful. The question then becomes was it a knowing misrepresentation, in other words that the use of the song was clearly fair use. Honestly, it wasn't. So they're probably not liable.

The only knowing misrepresentation I see here is EFF's ridiculous $400,000 legal bill. The attorneys who signed any legal filings requesting or supporting this should be sanctioned.

Devils Advocate (1)

Idimmu Xul (204345) | more than 4 years ago | (#30892014)

I'm an EFF member and support their request for attorney's fees, but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

It's not punishment, it's attorney fees. If you make a mistake that costs someone else $400,000 to sort out, then you have to pay for it!

An Indie artist would not have wasted $400,000 in fees before they rectified their mistake, in fact they would have actually rectified their mistake, rather than take it all the way to the judge!

It's consistent with the EFF mission statement. (2, Insightful)

Interoperable (1651953) | more than 4 years ago | (#30892056)

Perhaps I'm being to generous to the EFF lawyers, but it looks like they're using the $400,000 as a deterrent to rights-violating fraudulent DMCA take-downs. Sure, padding their pockets is a great side-effect, but a large financial slap in the face to online rights abusers is well within the stated mission goal of the EFF. I don't much like the thought of indie musicians getting hit upside the head with half a million dollar lawyer's fees, but the cause of stemming the flow of indiscriminate DMCA notices may be worth the risk.

I think a judge should be able to weigh the ability of defendant to pay against the abuse of the DMCA. A record label that has repeated violated the spirit of the DMCA and shows no signs of stopping is a good candidate for a full lawyers fee; hopefully a more reasonable agreement could be reached if the notice was a one time accident. There is some discretion within such rulings.

Yes, $40,000 is a fair punishment (0)

Anonymous Coward | more than 4 years ago | (#30892120)

> The problem is that once you have a $400,000 bill on the table, someone has to pay it, which punishes one or both parties usually vastly out of proportion to any wrongdoing.

Yes, $40,000 is a fair punishment, IF you decided to use an ultimate arbiter (the legal system) as your first and only means of interaction.

You should be able to come to some kind of agreement long before lawyers and their $40,000 bills are involved. If you can't, then it's most likely because the $40,000 result is stacked in your favor. Otherwise, you wouldn't play that way, would you?

Since the major abusers of copyright have decided to use a system that was never intended as anything other than an absolute last resort where it is essential that the parties have their differences of opinion reconciled, and use it as though it is a means for forcing their every petty trifle that they notice; then yes, seriously risking $40,000 should be the price of admission. Or, you know, they could try something else first ($40,000 would pay a negotiator full-time for a whole year to try and solve the problem amicably).

THE LEGAL SYSTEM IS A LAST RESORT FOR CASES WHERE NEGOTIATION IS OR HAS BECOME IMPOSSIBLE AND LOSSES ARE OR COULD BE CRITICAL. IF YOU TAKE TRIVIAL MATTERS THERE, YOU ARE TAKING A $40,000+ RISK; AS YOU SHOULD BE. IF IT'S NOT WORTH $40,000 THEN IT SHOULDN'T EVEN INVOLVE LAWYERS; LET ALONE INVOLVE LAWYERS AS THE FIRST OPTION.

> ...but let's play devil's advocate. Suppose you were an indie musician who sold your songs online, and you found a number of YouTube videos that used your song without permission, so you sent a long list of DMCA takedown notices to YouTube. Included in that list was one video that used only a brief portion of your song, short enough to count as fair use. Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

Indie musicians probably wouldn't be in this position; because they probably wouldn't have lawyers just hanging around waiting for infringement to be detected so that they can send out mass-produced takedowns. They would send takedowns only for infringement that actually threatened their work; and even then, only where they had bothered to ensure that the infringement, in the opinion of a COMPETENT, PROFESSIONAL AND ETHICAL lawyer, was a slam-dunk case. Otherwise, they'd be better off spending their time getting on with their job of creating and not worry so much that someone, somewhere, might not have paid the full fraction of a dollar that they are entitled to for performance royalties or other purchases.

How about a variation of "loser-pays?" (0)

Anonymous Coward | more than 4 years ago | (#30892134)

My suggestion: When you sue someone, you first have to post a bond to the court, the amount being proportional to how much you're suing for. If you win or the case is settled out of court, you get it back. If you lose, it goes to the defendant. Why this one-sided "loser-pays" system? Because the plaintiff is the one who decides whether to sue. The defendant has no choice in the matter. This unexpected interruption of his life and the legal expenses involved in defending himself should be compensated for, if it turns out that he did no wrong. On the other hand, the plaintiff has a choice. He doesn't have to sue. He will only sue when he believes the court costs and attorney fees are something he can afford. This just adds one more potential cost on top of that.

By keeping the bond amount tied to the amount requested by the plaintiff, you accomplish two things: First, it discourages people from suing for insane amounts. Second, if the defendant really did cost you something in the same order of magnitude as to what you're requesting, then it should be pretty safe to assume that you have something on the same order of magnitude in assets. For example, if I mug you and take $250.00, that means your income allows you to carry $250.00 around in your wallet. So posting a bond of, say, $150.00 shouldn't be an overwhelming hardship for you. On the other hand, if I mug you and take $10,000.00, then your income level means you should be able to afford to post a bond of, say, $7,000.00. It's not a perfect assumption, but it's a pretty good one.

Of course, this doesn't address how much the bond would be if you're suing for an injunction, or custody of a child, or some other non-monetary compensation, so those would have to be dealt with as special cases.

You could also give the judge discretion over returning the bond to the plaintiff even if they lose, for example if the defendant deliberately and willfully wronged the plaintiff but managed to exploit a loophole in the law to get away with it.

This also doesn't apply directly to DMCA takedown notices, but a variation of the same theory could work. It should cost you to file a fraudulent notice. Maybe not $400,000.00, but maybe $100.00 per notice.

Lawyers VS $bigcorp or $joebloe (1)

phorm (591458) | more than 4 years ago | (#30892136)

Seems to me that dealing with $bigcorp might be quite a bit more expensive in terms of lawyer work than dealing with $joebloe. If you need to contact $joebloe, you get his phone number.

If you need to contact $bigcorp, you go through a gazillion channels, find their legal department, possibly first finding the right division of the company, and then finding the *right* legal department, before you can get anywhere.

Writing the letter may be a small slice of the pie.

For the final sum though, I'd expect to see some form of estimate reasonably justifying the $400,000 as opposed to a flat fee. Likely enough though, $400,000 is a magic number intended more to matter enough to gain attention. I wonder if you could bill it as:
    local contact: $1500
    draft of legal letters: $1000
    submission of legal letters: $1000
    getting universal's bloody attention: $395500

Single payer, with penalties (3, Funny)

Rix (54095) | more than 4 years ago | (#30892166)

Lawyers should be paid by the government, with equal access to all. Rather than random attorney's fees as a penalty, levy a fine indexed to the plaintiff's income for frivolous lawsuits. Defendants should never be punished for exercising their right to due process, even (and especially) if they are guilty.

Re:Single payer, with penalties (2, Funny)

Smallpond (221300) | more than 4 years ago | (#30892364)

Lawyers should be paid by the government,

What would you call that? Universal Wealth Care?

Equal access (2, Insightful)

Rix (54095) | more than 4 years ago | (#30892512)

There can be at least some argument for inequality in health care, but inequality in legal representation perverts the very idea of justice.

Re:Single payer, with penalties (3, Interesting)

nomadic (141991) | more than 4 years ago | (#30892546)

Speaking as a lawyer, I'd love that. Cap my salary, take away my law school loans, and give me a reasonable work schedule and I'll be good, even if I'm making a third of what I could without the cap.

Mandatory Slashdot Editor Criticism (4, Funny)

idontgno (624372) | more than 4 years ago | (#30892176)

How long have the editors waited to use the phrase "EFFing lawyers"? All their lives, I'd guess.

Grats.

Yes (0)

Anonymous Coward | more than 4 years ago | (#30892236)

Is $400,000 a fair punishment for accidentally including one video in your list that wasn't a bona fide copyright infringement?

Yes. It's better to let 1000 guilty videos stay up than take down 1 innocent video. Give them an inch and they'll rape you with a rake.

It's just like that time with the brooms! (2, Funny)

HeckRuler (1369601) | more than 4 years ago | (#30892268)

Oh god! I think my magical clicky device is broken. I aligned the two eldrich factors correctly and conjured more words to the mystic scrying pool just like I've seen others do, but something happened and I can't fix it. More words appeared, and then more and more and there doesn't seem to be an end to them. Oh god they're everywhere! My master is going to be back soon and I don't know what to do with all of them. I think I'll get the axe!

Here'e my well-thought scheme :-) (4, Interesting)

A nonymous Coward (7548) | more than 4 years ago | (#30892280)

I hate the fact that money buys justice. I propose that neither side can spend more than the other without loaning the other the difference, and loser pays. If I sue MegaCrp for a legit complaint and they bring in ten lawyers to my one, that is hardly justice. They must offer to loan me what it takes to hire a full team. If I decline the offer, they are limited to one lawyer, just like me. If I take their offer and win, they don't get their money back, and they owe me for the one lawyer I paid for. If I lose, I owe them the fees for 19 lawyers. If they think I am not able to repay their loan and/or their own costs, they should not offer the loan and should restrict themselves to equal costs, or even less -- hire a cheap lawyer and make me loan them the difference, and if I can't afford that, I have to reduce my lawyering costs to match.

Same thing applies if they sue me.

Obviously you have to have some leeway; you can't demand matching down to the penny. You also have to have some auditing to eliminate padding and lies. But cases where MegaCorp brings in a full fancy team against a single lawyer is blatantly wrong.

I especially like the idea that it encourages keeping expenses small. The more you spend, the more you have to loan, and the more the other side spends. You can't simply swamp the other side with expensive investigations.

You have to combine with with loser pays or it is pointless.

coming up with a system (0)

Anonymous Coward | more than 4 years ago | (#30892350)

Could you come up with a system that takes into account the incentives of parties on both sides, and that prevents huge legal bills from being generated?

I could, but I'd charge you £4000000 for the work involved in coming up with it.

That is in jest, but it does make the point that those who would be the ones that would have to come up with such a system would be the ones with the least incentive to spend time doing so. Which gives us a delightful little loop.

I'm of two minds about this... (1)

jockeys (753885) | more than 4 years ago | (#30892366)

on the one hand, the part of me that despises RIAA tactics and obscene punitive damages thinks this is great: smack those bastards right where they'll notice, in the wallet.

on the other hand, talk of future discouragement aside, is the EFF becoming that which they hate? 400 grand for a letter of non-infringement? that's RIAAesque in its unreasonableness.

$400,000 is cheap (1)

mpapet (761907) | more than 4 years ago | (#30892382)

1. This is the Legal world not a PHP/.net software contract. The social value of Lawyers is ranked far and above any software/net profession. Their costs have a greater probability of reflecting what's needed in dollar terms to maintain a specific American standard of living within the higher ranks of American society.

2. Look at it the way software projects doomed for failure in the average megacorp are costed-out. Take the lone developer or two's salary, divide it into the hours on the project, then add in every single conceivable cost including electricity for the entire facility, the CTO's salary, Project Manager's salary, Project Team, the cost of every computer that uses the software, the cost of every *user* that somehow benefits and you'll get to a project cost of $400,000 for a bash script. While it may sound funny, I've been there and seen that.

Not to hijack the thread too much, but the CEO's pet project can bleed costs all year and not come under any scrutiny whatsoever.

Bottom line: $400,000 won't last long at the EFF.

Obvious (1)

devnullkac (223246) | more than 4 years ago | (#30892464)

The big breakdown in my mind regarding the concession of obvious points is that there is an unknown amount of effort that goes into assessing a point as obvious or non-obvious. If digging deep enough into case law turns an obvious point on its head, it may be a worthwhile search, and I might not want to concede the point unless it some of that research had been done. More often than we would like, common sense and the law are at odds over things that otherwise seem quite simple.

Attorney's fees and the Devil's Advocate (1)

Rene S. Hollan (1943) | more than 4 years ago | (#30892504)

Ahem.

Just because attorney's fees are sought, and awarded, does not mean they will be awarded in the amount sought. They have to reasonably reflect the legal expenses incurred and the defendant's ability to pay.

IANAL, but I write from experience: I went to court to enforce a provision in my divorce decree against my ex-wife. Long story short: she got the house, could not refi in her name, I was liable for the mortgage, and she was to pay. If she didn't I had power of sale over the property, to eliminate my obligation. Further, she agreed to a "hold harmless" provision to my benefit. That meant that she was to pay any costs I incurred to enforce the decree. Well, she never paid on the mortgage, I sued to enforce the power of sale (realtors wanted a judgment), was awarded expenses and legal fees. (I liened the house, and had to sue again when she refused to sign agreements of purchase and sale.) Had to return to court three times, with mounting legal fees, and, facing contempt charges, she agreed to award a power of attorney so I could sign in her place. Despite her intransigence, I was only awarded a fraction of my additional legal fees, on the basis that that's all she could afford.

$400,000 legal fees for a defendant that (a) should have known better, (b) had the means to know better, and (c) has the means to pay them, are not unreasonable. In the Devil's Advocate example presented, I'm certain no judge would impose them: the standard of due diligence for an individual fighting a large number of possible infringers lacking the means for individual investigation are different for a well-funded organization that has the means to engage in detailed individual investigation. Further, if the take down notice included language to permit establishing a fair use defense, a suit in response would have been overkill: the judge would ask, "Why did you not claim a fair use affirmative defense and see if the problem was resolved before hiring an attorney."

Here, I expect the take-down notice was heavy-handed, and the matter not researched within the reasonable ability of the rights-holder.

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