In step 4, what would the legal standard be for company Y's analysis of the evidence they were provided? Would company X have a claim against company Y, if they rejected evidence and company X still feels they're right?
> In step 4, what would the legal standard be for company Y's analysis of the evidence they were provided?
It's not a matter of "legal standard" for company Y's analysis in itself. It's a matter of what Company Y would be willing to defend in court if it came to that. The right person to answer that question is not me, but Company Y's executives, in consultation with Company Y's corporate counsel. That's what they get paid for.
> Would company X have a claim against company Y, if they rejected evidence and company X still feels they're right?
I already covered this case in my Step 4B: Company X sues Company Y for hosting content that infringes their copyright.
I think this would be extremely unlikely given what would have to have already happened before the case got to this point. Remember that both side's lawyers by this time have looked at all the evidence that would end up being presented in a trial, so both sides know what they're up against.
So, if you don't give company Y a safe harbor, then many such company Ys will simply remove content whenever they receive a complaint. It's cheaper, after all, and the users can't complain, since the contract will specify that.
We're back to widespread abuse, except without the ability of the uploader to file a counternotice.
> if you don't give company Y a safe harbor, then many such company Ys will simply remove content whenever they receive a complaint.
From what I can gather, many users would have no problem with that at all. At least one has posted in this discussion saying so explicitly. The DMCA is irrelevant for such users.
To the extent there's an issue here at all, it's balancing between companies that have legitimate claims against purposeful infringers, and people who post content they legitimately own (or which is legitimate fair use or some other exception) that are targeted, mistakenly or with intent to bully, by companies.
The DMCA arguably deters purposeful infringers, since it greatly decreases the cost to copyright owners of getting the infringing content removed and increases the cost of getting removed content reinstated.
However, the DMCA also greatly enables mistaken or bullying claims against legitimate content, for the exact same reasons: it greatly decreases the cost of having content removed and increases the cost of getting it reinstated.
If the first category is much larger than the second, the DMCA might be a reasonable tradeoff (putting aside the other issues I've raised about misuse of the law).
If the second category is much larger than the first (which is what I suspect), the DMCA does not look to me like a reasonable tradeoff at all.
The DMCA is relevant because it gives such companies a safe harbor to initially host such content. You would require they get a signed and notarized affidavit prior to granting this safe harbor.
I think we can fix the trade-off by increasing penalties for abuse, as this discussion originally opened with such proposals. I'm not convinced abuse is so inevitable that we should ditch the whole framework.
