Class actions exist to solve the collective action problem of the harm not being large enough for a single person to pursue.
Steal stuff all the time. Sometimes I would get catched for whatever I was stealing. Proudly I will face all of the consequences: I just give back what I was stealing. All harm done is fixed. I keep all the other stuff that I stole where I was not catched. Why should I stop with that enterprise? The law certainly doesn't stop me.
Isn't that law way too gameable?
I think a system like this would only "work" if you catch _everything_ unlawful. You basically need a totalitarian police state dystopia for this.
I think the law should incentivize right behaviour and disincentivize wrong behaviour. Not just to fix harms done.
Also, certain torts, like stealing, are considered criminal.
In other words the court should not be only there to fix harm, but also to teach a lesson.
Sorry what.. are you arguing against the concept of criminal law?
Because western states have happened to have chosen over the centuries to protect the general welfare by justifying its methods as "teaching people lessons" is neither explicitly permitted in any charter so far as I know (admittedly a small subset) nor necessarily desirable. I think it's not a n unfair argument that over the few centuries of modern history you can point to several incidents, sampled across many different nation-states, where particularly disgusting injustice has been promulgated under the cover of "teaching lessons", as if the general cover of "greater good" weren't bad enough.
As CS lewis quipped, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."
That's not what they're intended for. If all harms are efficiently deterred and compensated, it's only our base animal instincts that suggest there's something more that needs to happen. Civilisation, of which the legal system is a subset, is there precisely to tame our baser instincts.
Just to head off a foreseen objection: the correct amount of deterrence isn't to prevent a harm from ever happening (trivial, just bankrupt everyone who does any harm), but to provide a negative incentive on the perpetrator equal to the harm they will cause by doing some act. If the chances of someone being caught are low, then it's proper to multiply the eventual fine by the inverse of the probability, which creates the required incentive. If someone showed malice, then that's evidence that the incentives were insufficient, and a reason to increase the fine. But none of that, from a legal theory perspective, is to punish them or bring fairness - it's to create the appropriate economic incentives.
Read up on https://en.wikipedia.org/wiki/Efficient_breach for an example of this kind of thinking.
Punitive damages are a longstanding feature of civil law.
This happens all the time, not just with copyright law, so doesn't that seem to imply that the penalty for the larger party is insufficient?
Not necessarily. With copyright law there's practically no penalty, and I think that should be changed as I said elsewhere in the thread. But the optimal penalty level should be the amount of damages, plus some amount of punitive to account for the probability of a case getting that far, if it's low. If a big company decides that it's worth paying that amount in expectation in a standard tort case, then it is, in fact, efficient to allow that to happen and to have them compensate the other side in the instances where it does happen. At least when we're talking civilly and not criminally, where different concerns apply.
A class action on behalf of content creators who are being abused combined with federal antitrust action might persuade it otherwise - especially if actions were brought simultaneously in the US and EU.
Someone tried suing Amazon over basically this theory and failed, same lawyer that I'm using in an antitrust case against tp-link for false infringement notices to Amazon.
See https://www.courtlistener.com/docket/6169804/mordys-applianc...
And https://www.courtlistener.com/docket/16562550/thimes-solutio... for my tp-link case, I've mentioned it on HN several times. I have a list of similar cases, some of them use antitrust theories, but it's almost always against the brand/rights owner and not against the platform.
Personally I think the liability should be on the party submitting the complaint, not the platform. As long as the platform is permitted to reinstate the content after an appeal (which is what the DMCA counternotice safe harbor is about), that's enough. The DMCA framework works well [0], and I would like if it was extended to patents and trademark/counterfeit accusations as well.
[0] with the caveat that the standard for liability for false claims should be lowered, and they should be treated as per se antitrust violations.
Google has been trying to hide behind the "Oh dear our algorithm is experimental and fallible and sometimes it gets things wrong and that's very sad" defence, and it's obviously nonsense. You don't even need explicit evidence of collusion to understand why.
The "failure" of the algorithm has been happening for years now, and Google appears to have made no effort to correct the failure. But the real tell is that these "failures" disproportionately benefit large corporations which Google will have some relationship with - as opposed to small content creators who are disposable.
Ultimately, these actions are not mandated by law. So what's the legal - never mind moral - justification for them?
Nice theory, but in practice the process itself is often a punishment. Even winning a bogus case against you can come at great personal expense.
> The flip side is that anything you do to increase payouts also increases the number of suits brought
So if we flog lawyers for SLAPP suits, they'd do it more often? I have doubts about that; we should put that theory to the test.
You'd certainly have an increase in the number of frivolous anti-SLAPP motions.
Very related: I've been hit with a frivolous anti-SLAPP when suing a company that made a false accusation of counterfeiting against my Amazon account. https://www.courtlistener.com/docket/16562550/thimes-solutio... (can download the PDFs free at https://digitalcommons.law.scu.edu/historical/2153/ - feel free to contact me for all the case documents if you want.)
TP-Link is arguing that they have a 1st Amendment right to tell Amazon that someone is counterfeiting, even if untrue. They cite Noerr Pennington, which is a 1st Amendment doctrine. And this is a quote from their brief:
>Courts have found that the litigation privilege applies “regardless whether the communication was made with malice or the intent to harm.”
The anti-SLAPP was quickly denied. But the fact they brought it at all should show how this could get abused. Someone less confident than me might have dropped the case rather than risk having to pay legal fees if the motion was granted. And note that in a similar case against TP-Link, the anti-slapp motion was granted - that decision is up for reconsideration now, but the other side is asking for around 123k in fees. (See https://www.courtlistener.com/docket/14522683/tp-link-usa-co...)
It is my own personal, non-lawyer opinion that the anti-SLAPP motion in the careful shopper case was granted improperly. You can disagree; clearly a federal judge disagreed. So, in this context: do you think that lawsuit (or actually, it's the counterclaims that were subject to anti-SLAPP, so the counterclaims) should not have been brought? The brief facts of the case: TP-Link filed complaints to Amazon saying careful shopper was counterfeiting, got their account shut down, careful shopper sues for defamation and similar claims saying it was false and TP-Link knew it was false, TP-Link files anti-SLAPP saying even if this is true, they have free speech rights to say this to Amazon.