>You really think torrentfreak/isohunt/et al wouldn't just start filing suits over every single DMCA request they receive? What do they have to lose?
Money? Time? It wouldn't make any sense for them to litigate the cases they would obviously lose when they could choose the subset of cases where the take down issuer clearly has no copyright in the material in question -- which is the whole idea.
You're also giving the money to the wrong party. It doesn't make any sense to give YouTube or Tumblr the right to sue for bad take downs, if they thought they were bad they could just not execute them. The right for redress should be for the user who posted the material, not the intermediary. Which solves your problem with torrent sites filing frivolous claims. Do you honestly think release groups are going to get into the business of filing frivolous lawsuits against content owners? As soon as they identified themselves and consented to jurisdiction they would be counter-sued for infringement or arrested.
You're not following his reasoning to its conclusion. The people who run Isohunt surely don't want to spend their time writing court filings. But they'd be sitting on top of a mountain of potential claims, which would prove lucrative if even a tiny percentage resulted in damages. Unscrupulous law firms would notice and send Isohunt offers; at some point, it would become irrational of Isohunt not to accept one of them.
Isohunt is the intermediary. If they don't like a takedown notice then they can just not execute it; they don't need any redress from the courts. The plaintiffs with standing should be the end users who posted the material that was removed.
>But they'd be sitting on top of a mountain of potential claims, which would prove lucrative if even a tiny percentage resulted in damages.
Setting aside that Isohunt is the wrong party, yes, there are a mountain of take downs from which some small percentage should result in damages. But you can identify those cases ahead of time -- you know perfectly well you aren't going to win a case where you posted Fast & Furious 6 to Isohunt and Universal Studios issued a take down for it, there is no point in even trying. And if you do try then you're effectively admitting your own liability for copyright infringement when you have to assert you posted that material in order to get standing to sue.
The cases lawyers will want to take are the ones they think they can win -- and as long as they're right, that's what they're supposed to do. That's the whole idea.
Are you arguing that the situations where the take down is in a grey area (e.g. fair use) will create too much litigation? I don't really see that happening. On the one hand, the existence of penalties would create a disincentive for copyright holders to wantonly issue take downs in questionable cases, and if there was no take down then there is nothing to litigate. Then, in the consequently much reduced number of edge cases, in order to claim a take down was fraudulent a plaintiff would have to admit in court to posting the material and thus to liability for copyright infringement if the take down was legitimate.
Money? Time? It wouldn't make any sense for them to litigate the cases they would obviously lose when they could choose the subset of cases where the take down issuer clearly has no copyright in the material in question -- which is the whole idea.
You're also giving the money to the wrong party. It doesn't make any sense to give YouTube or Tumblr the right to sue for bad take downs, if they thought they were bad they could just not execute them. The right for redress should be for the user who posted the material, not the intermediary. Which solves your problem with torrent sites filing frivolous claims. Do you honestly think release groups are going to get into the business of filing frivolous lawsuits against content owners? As soon as they identified themselves and consented to jurisdiction they would be counter-sued for infringement or arrested.