Universal, Pay Those EFFing Lawyers 335
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.
$400,000 for what - one letter? (Score:4, Insightful)
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? (Score:5, Insightful)
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.
blabla (Score:5, Insightful)
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?
Fair Punishment? (Score:5, Insightful)
Why should the punishment for depriving a person of their right to fair use be any less severe than violating a copyright?
Re:$400,000 for what - one letter? (Score:5, Insightful)
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:The world's most expensive letter (Score:5, Insightful)
I dunno. If a single song is worth tens of thousands of dollars, it doesn't seem that far-fetched.
Re:$400,000 for what - one letter? (Score:5, Insightful)
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? (Score:5, Insightful)
Well, if a song is worth $180,000, then I can see how the letter is worth $400,000.
Hey, if 1 song is worth $40,000... (Score:5, Insightful)
Re:Safe Harbor Limits for Fair Use (Score:5, Insightful)
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:The world's most expensive letter (Score:4, Insightful)
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.
hmm (Score:3, Insightful)
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.
Re:Pay for service, not hours (Score:4, Insightful)
Re:The world's most expensive letter (Score:3, Insightful)
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:These are the only industries (Score:4, Insightful)
It was not just 30s (Score:4, Insightful)
The song was barely audible, so much so that I (and I guess many others) wondered how they found out.
Re:Safe Harbor Limits for Fair Use (Score:5, Insightful)
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:The world's most expensive letter (Score:4, Insightful)
Re:The world's most expensive letter (Score:5, Insightful)
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.
It's consistent with the EFF mission statement. (Score:3, Insightful)
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.
Re:$400,000 for what - one letter? (Score:5, Insightful)
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.
Re:It was not just 30s (Score:2, Insightful)
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.
Equal access (Score:3, Insightful)
There can be at least some argument for inequality in health care, but inequality in legal representation perverts the very idea of justice.
Re:$400,000 for what - one letter? (Score:4, Insightful)
True, the fees themselves don't stack up anywhere near as much as the other parts of the awards, but they're separate items, and if an easy opportunity to knock one of them down comes by, I don't see why they shouldn't take it - the worst that could happen is that Universal sees through the plan, and just forks over the $400k in order to preserve the RIAA's lawyer fees, in which case the EFF has an extra $400k to throw at defending people from them.
Just because there are two parts to a problem and one is bigger doesn't mean you should completely ignore the "smaller" (yet still way overblown) part. If challenges to the $150k per song are successful in getting it dropped to the $0.99 that it's actually worth, that would still leave the average defendant stuck with hundreds of thousands in lawyer's fees, and the lawyers launching the suits making boatloads of cash for doing it - meaning that even with reduced "per infringement" awards, the RIAA is still free to bankrupt anyone who challenges them. Getting their lawyer's fees slashed hard will make it less profitable for the RIAA's legal team, and also cuts off part of their means of intimidating people into submission.
Re:$400,000 for what - one letter? (Score:4, Insightful)
Nah, I see it coming to a different conclusion.
1. Universal argues excessive fees - wins
2. RIAA sues college kid for more money than he could make in 200 years.
3. EFF argues fees are excessive, is shot down.
4. Current standards of "law and common sense only apply to the poor - the wealthy are above the law" are upheld.
5. Everyone not a giant corporation or in personal possession of more money than most small countries loses.
Re:Safe Harbor Limits for Fair Use (Score:3, Insightful)
I see some posts already about how $400,000 is a lot of money for the letter, but they're completely disregarding the painstaking work and research that went into drafting that letter.
Oh come on, painstaking work and research that amounts to $430,000 (the actual amount claimed in lawyers fees) ? The EFF only sued last July, so that amount equates to at best 6 months of work ... of course we all know how the legal system works, so lawyer A files some document, lawyer B sits on it for two months before responding, lawyer A sits on it another two months before making another response ... so in essence about 2 days *real* work on either side.
200 grand a fucking day ? Something is seriously wrong with our world.
Re:The world's most expensive letter (Score:4, Insightful)
Then again, if a single song download can be worth $10,000 or $80,000 or what have you, why shouldn't we let the EFF make up arbitrary figures as well? Universal doesn't seem to mind arbitrary dollar amounts rather than something based on an actual calculation of actual costs when that's in their favor.
Re:Safe Harbor Limits for Fair Use (Score:4, Insightful)
The really sad part here is that if the video had been 2.1 seconds shorter, she would have been well within the widely-accepted standard for fair use - perhaps she's still legally in the right, but it would have been a whole lot easier to argue if she could use the 30-second/10% guideline to support herself.
There is no "widely accepted standard" of "30-seconds/10%" for fair use of a musical work. All cases where fair use is a defense are judged solely on their own merits, with no hard and fast rules.
This is why there are rulings of "infringement" for sampling 5 seconds of a 5 minute song, and rulings of "not infringing" for using every second of a song.
It's all subjective, and until people start realizing this, they will let the big corporations push them around, since it is in the best interest of those corporations to make people believe there are hard and fast rules when none actually exist.
Re:Yes, but... (Score:5, Insightful)
It's illegal to double-bill, falsify bills, and such. However, to craft a "sure-fire" letter, could cost that, especially with the stakes at hand. I would assume that when they saw it, they decided to make this a test case. So they didn't craft the letter to the letter of the law - "Nuh uh. Signed, Lawyers" (which is about all that's needed for a counter-letter). Instead, they created a letter that probably said the same thing, but with cites, precedents, and arguments that indicated that not only was if Fair Use, but so obvious that they should have known and never filed their takedown.
I assume that their takedown system is such where any detected use of their works, no matter what for, generates a letter. The EFF thinks this illegal. They worked hard in drafting and defending a letter to this point (when "nuh uh" was all they needed). It's more like front-loading the case. They made sure the number was high enough that they would make a case of it. Send them a letter and a bill for $150, and there's a good chance it would be paid to shut them up and prevent precedent. But a bill for $400k to your "enemy" is something they'd fight over. And the EFF wanted to make sure that battle happened and that they were ready for it. So that was both the cause of and reason for the bill being $400k.
I don't think it's inflated at all, in the sense of they probably did spend the time to generate that bill. But I'd argue that if it was to obvious as to be illegal, then the letter should have been $150. And if it was that complicated, then the bill should be $400k, but that they wouldn't be on the hook for that because it wasn't so obvious. The fact that $400k was spent on a single letter would indicate some manner of complication.
Re:Safe Harbor Limits for Fair Use (Score:3, Insightful)
Re:Safe Harbor Limits for Fair Use (Score:3, Insightful)
It's all subjective, and until people start realizing this, they will let the big corporations push them around, since it is in the best interest of those corporations to make people believe there are hard and fast rules when none actually exist.
I hope you realise(d) you placed the word 'corporations' in the sentence where in a less broken legal system would have been written 'laws'.
Re:$400,000 for what - one letter? (Score:2, Insightful)
Re:Safe Harbor Limits for Fair Use (Score:4, Insightful)
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.
Actually, there's a very well-known CEO who considers exactly that, and he has been, at one time or another, considered the richest man in the world: Warren Buffett. He famously once said, "It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you'll do things differently."