Peter Gervai wrote:
On Fri, Jun 4, 2010 at 11:37, Ray Saintonge wrote:
The only
catch is that by filing the counter-notice you are putting your
money where your mouth is and legally asserting that you have the right
to post the work (so make sure that this is correct or you may end up in
a lawsuit).
Absolutely. If more people were to accept responsibility for these
materials it would spread the risk most wonderfully.
The main problem is that people edit WP on their free time as a
hobby, and they do not possess large sum of money of their family
budget to offer to nondeterministic amount of risk. People are not
familiar with the legal process and risk, as you people said, which
means they cannot measure the risk either. They most often doesn't
even plan to privately pay a lawyer to tell them about it, since it's
not a wee amount.
The procedure for putting up a counter-notice is very simple, and costs
nothing ... unless you send it by snail-mail and have the cost of a
stamp. There have already been excellent suggestions to describe the
process in an article on Meta.
A person who is seriously considering a counter-notice will probably
have given some consideration to his chances of success, more so than
with an original posting of the material to the site. Personally, it
would not bother me to post questionable material just to flush out the
rights owner of a possibly orphan work. If the owner issues a takedown
order you know he exists, and publishing the order insures that that
information becomes public whether or not you take the matter any further.
The level of risk will vary with each individual work being considered.
Compared to speaking on your cell phone while driving there isn't much
risk at all, and even the highest degree of risk is not likely to be fatal.
The permutations of what can happen are endless. If you are in country A
issuing a counter-notice regarding a rights claimant in country B
granting jurisdiction to a United States court over a site in the US
when neither of you are there what's the likelihood that it will ever
really get to court? It's going to cost the rights claimant too to go to
court. How much is he going to want to invest in time, money and travel
to prosecute his case when winning is highly uncertain? He has to pay
his money before you do just to get a case filed. I believe that it's
much easier to be a defendant than a plaintiff in such cases.
If it gets this far, then what? You could play to win, and maybe get
your costs covered if the judge deems the case bogus. You might even get
pro bono legal help, or be able to get people to help your defence
because they believe in your cause. (If you get more than it cost you,
the ethical thing might be to give the excess to the cause. :-) )
Another possibility is that you might concede the case and the plaintiff
would get a default judgement. That could result in an order of the
court to take down the material, which only puts us back to where we
were before you filed the counter-claim. The court could award damages
but there are limitations here too. Then, what do they do to collect
that money when you aren't even in the United States? In other words
most of the difficulties that can be encountered tend to favour the
defendant.
You can't depend on the lawyer to evaluate your risk. If he evaluates
wrongly you are still the one to pay. Unless you do something
abominably stupid the risks will be low, and there are plenty of
Wikimedians available that will always be more than willing to tell you
when you are being stupid. If you still don't believe that the risk is
low, you might as well keep talking on the phone while driving.
So either we wait until people want to spend their
private money to
lawyers to define the risk and only accept mostly low risk
counternotices, or to enroll to be crash test dummies. Both highly
unlikely.
That you will accept to file low-risk counternotices shows a glimmer of
hope.
Or we can reasonably expect them to ask for real legal
advice from (or
paid by) the WMF and _then_ accept the _known_ risk to file a
counter-notice.
My willingness to accept the WMF as my nanny is on a par with my
willingness to accept Jesus as my Lord and Saviour.
I do not say we have to do that, only that I believe
people won't do
it any other way.
Yes, that fairly represents a very sad state of affairs.
Ray