The goal in my mind would be to make a very approachable, reasonable, "safe" reform that's both small and yet makes a difference. Senators get scared of big changes unless the entire political party is on board, which is unlikely in this case.

Or, or, here's an different idea. Every DMCA request gets $10K automatically put in escrow for a mandatory arbitration. If the violator is a no-show or the DMCA takedown is ruled "not frivolous" (regardless of how good it is, just not frivolous level), the money is returned to the DMCA filer. However, if the person slapped shows up and the arbitrator says "frivolous," the $10,000 is sent to the slapped person and the DMCA filer must do a full lawsuit to retrieve the $10,000 back, which will ultimately require full legal proceedings over the validity of the request. Or instead of $10K, make it $25K. If you truly believe your request is valid, what do you have to fear knowing the money will be returned?

The point is some system where the DMCA Filer must throw cash on the line from the beginning to prove good faith.

You could also make the amount required variable to company size. Small company under $1M in revenue? $500. $1-$100M? $5000. $100M+? $10000. IDK, just something.

This makes it prohibitively expensive for small-time creators.. not a fan. While individuals making good faith claims against actual infringers is a much smaller volume of DMCAs by sheer number, such a requirement would effectively lock them out of the system, doubly so if the scope of the infringement is massive.

A simpler fix imo would be to amend the "perjury" provision of the DMCA and append "or negligence". This clamps down on the most egregious abuses.

That would work... but only if a small creator, you know, sued.

What I'm trying to get at though is that the creator filing the DMCA request should have to put something on the line to show they are operating in good faith, and I believe that something should be larger or smaller depending on the size of that creator.

The arbitrator in the picture is just to determine whether the DMCA has merit, in which case the something is sent back to the DMCA filer and it's a normal DMCA; or if the request does not have merit, in which case the something is sent to the person filed against.

I'd argue that current situation hurts small creators way more. From what I've seen, they receive DMCAs much more often than they send them.

> The goal in my mind would be to make a very approachable, reasonable, "safe" reform that's both small and yet makes a difference. Senators get scared of big changes unless the entire political party is on board, which is unlikely in this case.

If you're truly serious about pursuing political change, it can help to have some of the actors advocate for some truly radical change, so that the change that you really want starts to seem moderate and reasonable. Call it shifting the Overton window, or the "good cop, bad cop" strategy of politics.

In my head, this is the “we need rms, because we have Larry Ellison” scenario. If you don’t have an “opposite end of the bell curve” zealot, the extremists on the other side drag the “middle ground” as far as then can towards themselves.

It seems like this would significantly impact low to middle class people and small businesses that don't have $10k or $25k in liquid assets ready to be tied up in arbitration.

In what universe do "low to middle class" people own copyrights and send DMCA takedowns?

Small-time artists, musicians, and photographers. DMCA takedowns aren't just for corporations protecting their IP; they're also a valuable defense mechanism for hobbyists when their work gets ripped off by those corporations.

You mean those musicians, who regularly have their music stolen by music labels? I am curious, how you imagine DMCA enforcement by such people.

They send a DMCA notice to a Hollywood studio... then what? Will production committee pull the movie out of cinema? Will they recall blu-ray disks from shops to destroy them?

DMCA offers no way to negotiate compensation or receive payment — "artists, musicians, and photographers" still have to sue to get paid.

I did not mean that if they lost the arbitration that they would lose $10K or $25K.

In my theoretical example, let's say Disney slapped this person with a DMCA for the Loki look. Instead of just sending the DMCA request, they would also need to put $10,000 in escrow, and then open a meeting with an arbitrator for review.

The arbitrator's job would not be to assess it's validity, but would be to only determine whether the DMCA was frivolous or not. If the arbitrator rules it's frivolous, the $10,000 gets sent to the person pretending to be Loki. If the arbitrator rules not frivolous, the $10,000 that Disney put in escrow gets returned and it plays out like a normal DMCA.

The whole point is just that Disney, or the person filing the request, would be putting $10,000 on the line with the risk the arbitrator could rule it frivolous. If Disney disagrees, they can open a full lawsuit against the person, but that's a big risk on both sides that could still have abuse.

I'm just spitting out ideas. Maybe something like this could get refinement.

I meant lower/middle class people and small businesses wishing to _file_ (not receiving) a DMCA takedown, and thus being subject to the "deposit".

A few years ago, when I was in college, a friend had his art stolen from his website and reused on social media by a mid-sized company. A DMCA takedown solved the issue, but being a poor college student there is no way he could have found $10k lying around to use for takedown, even temporarily.

@cmeacham98 This was a flaw in my original draft. I'm just trying to get some ideas down. I edited my original post to add:

"You could also make the amount required variable to company size. Small company under $1M in revenue? $500. $1-$100M? $5000. $100M+? $10000. IDK, just something."