It would be impressive if legal code could somehow be "compiled" for syntax checks as well as encoded in such a way that it becomes expert system rules. That way, asking if a particular action was legal simply would be running it through the "AI" to find out.

That would sort of make some of the stuff that judges do to become obsolete, but is that a bad thing too?

It still is AI, or at least as much as "AI" becomes in video games. IMHO about on the same level too.

I'm betting that in this case "expert system" has become an abused term that the marketing guys of the software developer want to strongly avoid due to bad experiences (like the Denver Airport) over the years. Either that or because the people involved were originally from China, the translation of the term got mangled going from English to Chinese and back to English again. I am strongly suspecting more of the latter though.

You are correct, this simply is an expert system applied to a large practical application worth millions of dollars.

The ISP won't lose the safe harbor status. You never had them in the first place, so there isn't anything to lose as you aren't an ISP with that. The ISP does lose that safe harbor status if they refuse to put your content back up... thus they are throwing all of their support into the party that issued the original take-down notice and are willing to be subject to any possible penalties for removing the content. Most ISPs aren't that stupid. YouTube even removes black marks from your account until the judgement is made (I think this is even required by law... at least after some lawsuits against YouTube/Google showed them the light) and the judge has formally ruled against you.

A judge can get involved in the process at any time, where you can simultaneously issue the counter-notice AND file a lawsuit over the original take-down notice (your option). It isn't like this is too hard to get into a court-room, but you are here insisting that the judge get involved right from the beginning. I simply think you are wrong as it is silly to the point of absurdity that judges need to be literally reviewing even the most trivial matters possible like reviewing very clear cut Linux kernel source code as being a copyright violation merely by posting it in an on-line public repository.

I also think you fail to even comprehend what the DMCA take-down notice process even is in the first place to continue this kind of argument.

You don't need to demonstrate anything other than simply demand the content be restored. You do risk getting sued by the folks who issued the original take-down notice, but you already know that your are in the cross hairs of whatever company issued the take-down request in the first place.

The person you need to demonstrate that you actually have a legitimate claim on this content is simply yourself, so far as being bold to demand that it be restored with a counter notice. If you get such a notice, take a moment to pause and really consider if it is legitimate or not. If you think it is (perhaps even consulting a buddy who is a lawyer if you really want to be sure), don't hesitate and demand it be restored.

I am also suggesting very strongly that most often you won't even get anything else happen after it is restored, because most of the trolls don't want to spend money (it does cost money to file a lawsuit) unless they know they are going to get something from it. By filing a counter notice, you already are showing a little bit of backbone, so they are further hesitant to just automatically go onto the next step without doing a pretty good review of whatever you demanded get restored.

I'll also note that if it goes to the next step of an actual lawsuit, "actual damages" are a whole lot easier to assess so far as legal fees are concerned, which can be a part of the judgement. It doesn't take a separate action here BTW, unless you really intend to file a lawsuit over the initial takedown request where they refuse to take any further judicial action. Note here there is also a statue of limitations that limits how long the company can wait before filing the lawsuit after you demand the content is restored. Repeated take-down requests also show judicial abuse and can get some fines and statutory damages.

Don't get me wrong, the DMCA is a horribly written law, but in this situation with the take-down notice process, it really is one of the better parts of this particular law (not perfect, but better) and an improvement over the earlier process of fighting lawyers through snail-mail responses and cease & desist letters. The take-down process also doesn't stop a lawyer from sending a formal cease & desist letter after you demand that the content is restored too, so there are additional steps that the people like Qualcomm, BMI, or Disney could take before even filing a lawsuit.

The alternative, what you are refusing to acknowledge, is without this first step and goes straight to the lawsuit. At least with the DMCA take-down notice there is a small speed bump along the way that can give everybody (both the target of the request as well as the person making the request) a chance to review what is going on and potentially flag abuse. If you really think something better could be done, please express that alternative other than going straight to the lawsuit phase. I also disagree that this puts the burden hugely on the defending party.

We are talking circular arguments rehashing the same thing over and over again. The point of the DMCA take-down process is to avoid needing a court room, in effect turning the court room into an appeals venue. There are alternative approaches that could be done beyond simply the DMCA, and you seem to be insisting that a judge is involved in every situation. That isn't even the point of a courtroom in the first place, which is where I think you miss what a judge actually does.

This isn't a matter of sacrifice, but showing a misunderstanding of the legal process as a whole.

My experience in clear-cut cases is that it doesn't take much in the way of resources. It might take some research and having somebody willing to do some pro bono work to help you prepare the case definitely helps. None the less, the judicial system isn't so completely out of touch that you should automatically roll over and let these big companies always get their way.

I'd like to note that I earn a professional wage off of copyrighted content. I depend upon copyright working in order for me to support and feed my family (not very lavishly either I might add). I don't have money to hire an intellectual property attorney nor drive the 100+ miles each time I need to visit a federal judge at the nearest federal court house. When I say that I think it is a stupid thing to have each possible copyright infringement go to a judge for review, I think it is not only a waste of time for that judge but also for me as well.

I have had people violate my copyright, and it hurts when that happens. I am simply asserting that in my case the DMCA is my friend in terms of even giving me a tool to enforce my copyright claims. You are asserting that such a tool shouldn't even exist. There is also a more normal cease & desist letter, but that is essentially what the DMCA take-down notice actually is in the first place, going to the ISP instead of the actual person first.

Again, under your system of strictly using judicial orders for removing content, how is copyright even going to function for somebody like me?

The risk in this situation is if you file a counter notice and then they decide to pursue additional legal action. While a counter-notice is indeed more painful than the initial DMCA take-down notice, it is much easier to do than filing an actual lawsuit where claims are subject to perjury penalties for making fraudulent assertions. It takes formal judicial action in order to go any further.

For somebody who has a viral video on YouTube, having the video taken down for a few days might hurt, but then again you have room to show actual damages too and likely win some money just for that as well. Otherwise, the few days that content is down really doesn't matter all that much and you just treat a DMCA take-down notice like a troll comment on a blog or forum.

I'm reading posts here from folks who assert that every time you end up in a court room that you will automatically lose. I think that is just utter bullshit and that is what I'm calling out.

You really have a warped sense of the law here. Note, you aren't filing a countersuit here, you are filing a counter-notice and expecting them to file a formal lawsuit against you if they want to continue. They, the guys who filed the original DMCA notice, need to spend their money filing the lawsuit and going before a federal judge to explain why they want to see you in court.

Where do you get this notion that the law doesn't apply to you, me, or anybody else other than some special elite? Are you really serious about this belief that laws don't matter and don't actually protect anybody but somebody with seven+ figures in their bank account?

If Qualcomm in this situation filed a copyright violation lawsuit over GPL'd code posted on Github, they would need to pay legal fees for that lawsuit and other costs.... something that has current legal precedence as similar lawsuits have already happened and the big guy lost against a couple of college students.

If you automatically assume judges are corrupt, I suppose that you disagree with the entire notion of the rule of law, so just go get a shot gun and fire it through the eye sockets of the guy filing the lawsuit.

Really, such assertions are bullshit even if there might be an occasional judge who is corrupt. Find a good lawyer if you get sued who has the balls to appeal when such clear-cut cases are so patently obvious that the judge in question might even be disbarred for ruling against you. That can happen too BTW. You don't need to understand computer programming to understand the GPL.

No, it is not. It sounds like a great way to earn a whole bunch of money from somebody who is having repeated brain farts about what the law actually says. Lawyers who fail to understand the law will repeatedly lose in court too, regardless of how slick their speeches might be or the quality of their stationary.

It does take knowing what the law is, and to make sure you stay on the sunny side of the law in terms of copyright in these situations. Make sure that anything you post on-line is indeed something you actually wrote, filmed, or is otherwise original content you made, something you have an iron-clad license for (like the GPL or CC-by-SA), or is very clearly fair-use. If you are in turn doing on-line activism and posting every movie you got from an underground sharing site, be prepared to face the consequences of that action too.

Simply put, I think you are being too afraid of lawyers and your ignorance of the law as well as unfounded fear of lawyers is showing through here.

I completely disagree with you, and it shows you know little of what lawyers actually do for a living. 90%+ of all legal matters are handled without even involving a judge at all, where the lawyer simply explains what the law allows or doesn't allow and resolves the whole matter without going to court. We don't need to have a judge involved each time a little kid gets a scrape on a playground or gets taunted by a bully.

The other problem with your assertion that you need to go before a judge to get the content removed is that there is a whole lot of content that really should be removed as it is a clear violation of copyright. I'm sure you've seen stuff that is a violation of copyright even if it isn't a violation of your copyright. The point of the DMCA was to make it more expensive for the copyright violators than it was for those who were trying to enforce copyright laws in the first place.

As a matter of policy you are entitled to disagree with that concept, but your solution is not on a practical basis even possible and effectively is arguing that copyright shouldn't even exist in the first place. I have seen some hardcore libertarians argue such a viewpoint which is at least logically consistent, but in a universe that has copyright as a law it is simply stupid to run to a judge each time you think something is wrong.

Would I be willing to be my house and savings against some asshole who claimed that my original content with a couple of music clips included that I obtained from a musician under a CC-by-SA license (commercial distribution is legit in this case too) is a violation of their copyright?

Hell yes, in a New York minute. I even think I would be willing to find a lawyer that could take 100% of any sort of damage award (aka I don't want anything other than to see the troll rot in hell) in exchange for the case.

The problem is if you are already in a legal grey area of copyright law, in which case you should think twice about sending the counter-notice. Stay on the sunny side of the law and you will be fine, so you don't need to sweat at all when people start to be jerks. If you have any doubts, hire a lawyer for a couple hundred dollars (it doesn't take a mortgage on your house) for a quick consultation about your situation and get a pretty solid legal opinion on the topic. It might be enough to at least know where to turn when people are being jerks.

You don't need to roll over every time.

The ISP could potentially start a lawsuit against such a idiot from "Company A" if they are getting so many false take-down requests that they can sue for damages. On the other hand, any such company who consistently gets overturned in the judicial system and is stuck paying legal fees for false notices after a counter-notice has been issued is likely going to be going bankrupt anyway.

What a responsible ISP could do in that situation is make it very easy to send them a counter-notice to restore the content. You need to be made aware of the fact that if you have a website or some other content on-line that you are similarly making a statement that you in fact have licenses for all of the content or it is legitimate fair-use and are prepared to state that yourself under penalty of perjury before a judge.

Legally an ISP can't deny such requests even from obvious trolls, but they can certainly make it easier to fight back for ordinary folks pushing against the trolls.