The complexity here is that there are multiple parties involved: the copyright holder, who suspects there may have been an infringement; the uploader of the potentially infringing content; and the host, who wants as little to do with copyright claims as they can.
The DMCA strikes a balance for the copyright holder and the host, by letting the host avoid any liability for the copyright infringement, as long as they enforce valid requests by no longer hosting the content.
The new EU law builds on this principle, giving hosts more responsibility to check whether copyright might be being infringed. I'm strongle against the idea, but I can see the logic that the host is best-placed to actively monitor all uploaded content.
A big issue I have, both with the DMCA and this new legislation, is that there's no balancing in the direction of the uploader. Aggressive solutions like your proposal do address this imbalance, but they don't do anything to address the actual concerns each side has.
If we want more reasonable copyright laws in this arena going forward, we should also be pushing for an uploader's right to appeal, as a balance against the rights of and affordances for the other two parties:
* There should be an 'appeals'/'counterclaim' process for content uploaders to take responsibility for the content. Presumably, to balance against the copyright holder's needs, they should submit their name and address when they claim that their content is non-infringing.
* From the host's side, the uploader following this process should remove all responsibility for that content from them, so they have no concern about liability and can re-enable access to the content.
* From the copyright holder's side, they need to be able to seek recourse if they still think the content is infringing. This can be done by taking the uploader to court, using the details they have provided.
I desperately hope this new legislation fails, but I think you were spot-on about aiming for a 'fair balance', and even acheiving that would be a great improvement.
I don't think your proposal would do anything to reduce the rates of false negatives, because there's no incentive to avoid them. Many false negatives will never get identified in the first place, because if a side-project pedestrian creator wasn't going to make any money off a creative work, why would they expose themselves to a possible court summons?
This is all true, but it does do something to start redressing the balance. Once we're at the stage where content creators have some of the control back, then we can start looking at reducing the stakes for non-profit content, limiting the claims rights holders can make if they abuse the system, etc.
Expecting a solution that covers everything first time -- and trying to persuade people that the special cases are necessary without seeing the system in action -- is a great way to achieve slow/no progress.
The DMCA strikes a balance for the copyright holder and the host, by letting the host avoid any liability for the copyright infringement, as long as they enforce valid requests by no longer hosting the content.
The new EU law builds on this principle, giving hosts more responsibility to check whether copyright might be being infringed. I'm strongle against the idea, but I can see the logic that the host is best-placed to actively monitor all uploaded content.
A big issue I have, both with the DMCA and this new legislation, is that there's no balancing in the direction of the uploader. Aggressive solutions like your proposal do address this imbalance, but they don't do anything to address the actual concerns each side has.
If we want more reasonable copyright laws in this arena going forward, we should also be pushing for an uploader's right to appeal, as a balance against the rights of and affordances for the other two parties: * There should be an 'appeals'/'counterclaim' process for content uploaders to take responsibility for the content. Presumably, to balance against the copyright holder's needs, they should submit their name and address when they claim that their content is non-infringing. * From the host's side, the uploader following this process should remove all responsibility for that content from them, so they have no concern about liability and can re-enable access to the content. * From the copyright holder's side, they need to be able to seek recourse if they still think the content is infringing. This can be done by taking the uploader to court, using the details they have provided.
I desperately hope this new legislation fails, but I think you were spot-on about aiming for a 'fair balance', and even acheiving that would be a great improvement.