Publishing by any measures is exploding in the USA. Content creation whether it be movies, books, music, blogs (citizen journalism), websites... has exploded. That simply isn't happening.
I agree that there are problems with the laws. For example copyright seems to last too long. But the complaints about about the DMCA are just ignoring the concept of copyright all-together. It might be reasonable to make copyright effectively unenforcible but the fact that the DMCA doesn't do that doesn't mean the law is abusive.
Right but the argument that everyone is making is that Qualcomm doesn't really think that and if they did a proper analysis on their side they would agree they were in the wrong. That the DMCA is putting too much of a burden on distributors. Your hypothetical is that Qualcomm would still believe it was theirs after a proper analysis. That's a much more serious matter and does deserve escalation.
Well it happened to the RIAA on copyright infringement lawsuits. They paid damages even for 3rd party collection agents which they authorized that crossed the line. I don't know if any involved the DMCA or not.
Unspending users can only hold back technological progress if software vendors keep maintaining obsolete technology to please them. Which doesn't make much sense
Developers of applications didn't want to drop part of the market. And the cycle becomes self feeding. Updates do less so customers feel less compelled to update.
except in the context of trying to keep meaningful competition from arising.
That was Microsoft until recently. They were very worried about the bottom of the market and disruption from below. Now that it has happened they are shifting up market.
If Qualcomm's DMCA complaint indicates they believe they actually a specific part of the kernel that's not a BS complaint anymore. That's a legitimate copyright dispute. You probably shouldn't be distributing that code until the mess is cleaned up. The obvious thing to do then is that it escalates quickly to kernel.org to either come down firmly on one side or the other. It should be a big deal.
A DMCA takedown has no binding legal authority it simply notifies the distributor that the originators claim to have a valid license is disputed. Because everyone in all legal situations has an obligation not to facilitate criminal acts they need the originator to step up as the responsible party.
You can prove this by simply filing with your ISP strong claims of copyright in advance for all the content then if they get a DMCA order nothing happens.
If Qualcomm files in court (the next step after a DMCA) that it owns copyright on parts of the Linux Kernel (for example) it would need to assert why it believes it is their code. It is going to be hard for them to file a detailed document without being maliciously negligent or outright committing fraud. Think about it from their perspective, someone in Qualcomm has to write that long detailed document alleging all sorts of nonsense.
Your complaint is about the civil law system in general and how it handles parties of different means. I don't disagree with you, but there is nothing specific to the DMCA in that complaint. What you want is a replacement for DMCA but a replacement for the entire US civil law system.
This is the court system! The first step in a lawsuit is the parties establishing a disputed fact. Qualcomm has made a claim of copyright. The other party needs to establish they disagree.
Additionally, IIUC, if the accuser acts through legal agents (lawyers) then even clearly fraudulent takedown notices don't have ANY risk. The lawyer is entitled to have a "good faith" trust in his client, and the client isn't filing the takedown notice.
The client most certainly is responsible for the actions of a paid agent acting on his behalf.
You are making the accusation. Why should the burden not be on you?
The burden is on Qualcomm. All the people have to do is file a notice with GitHub contesting their claim of copyright. That's it. It is a simple cross filing.
Qualcomm: (DMCA notice) This is our copyright Individual X: No I have a license (show a little proof) GitHub: Content goes back up
Now if Qualcomm wants to go to the next step that's a lawsuit and they have to prove their case by preponderance of the evidence.
Once you send the counter notice GitHub's legal problems are over. Now someone is clearly taking legal responsibility which is the point of the DMCA. I'm not sure why GitHub wouldn't put stuff back up. But if they don't that's their failure to understand the law.
Really, the take-down notice procedure in the DMCA is IMHO one of the better things in that law as it means you don't automatically need to hire a lawyer if somebody is getting pissy about something you've put on-line. I agree that some abusive practices of some companies should be smacked down by a judge and perhaps some corrective legislation imposing penalties for its abuse should be imposed as well, but I consider that to be tweaks on what is really a pretty good law.
Exactly. And those practices will probably get hit pretty hard when they go after the wrong people.
Hold on. Once it goes to court Qualcomm is falsely asserting copyright. That's fraud. There are most certainly damages people have collected against fraudulent claims of wrongdoing. Ask the RIAA or the big banks paying fines for negligent foreclosure filings.
How am I wrong? What changed about cease and desist law. I understand you don't like the law but that's not the same thing.
And there is no taking their wallet. Under normal distribution agreements you provide proof of license to a distributor prior to distribution. That's still allowed and then the DMCA notices don't matter. The DMCA simply established the rules for distributors who don't have licenses prior to distribution if the license is contended.
I understand and agree. This applies to the entire USA civil court system. The claim was that DMCA was some huge change unlike the rest of our system. Your complaint is more general.
Probably pretty close to 0. You file and Qualcomm would back down and settle fast if this material is really clear cut open source which is what everyone is assuming. If it goes the distance around a house+ given Qualcomm's deep pockets. But that's a problem with the USA system across the board not just the DMCA.
That's normative. The DMCA says that distributor X can assume content is legal, they don't have to have a process prior to distribution to check license; which would be the alternative. But... if someone claims copyright then they need to establish that their is a license. Someone has to step forward and agree they are taking legal responsibility to distribute stuff.
If Qualcomm after careful examination still believes they own copyright that isn't the situation everyone is complaining about but another question. You are asserting you are properly licensed. Qualcomm would be asserting they have copyright. Given this is GitHub you are talking open source software. That should be an easy suit. This is exactly what people are asking for, that Qualcomm look carefully.
Prior to the DMCA most distributors demanded proof of licensing prior to distributing. The DMCA establishes a process for a distributor (like GitHub) to distribute without a strong claim of license in their possession prior to distribution.
The legal process in the USA starts with negotiation between the parties. That's how it always works. Courts don't intervene in contracts until the parties can't come to agreement.
I understand. But the inequality between rich and poor in court ain't something new which is what GP was claiming.:)
There are other justice systems where wealth is less of a factor which have other different minus.
Yes. The RIAA got their head handed to them for these sorts of claims. In a sort of related ways banks have paid 10 digit fines collectively for false foreclosure notices.
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Publishing by any measures is exploding in the USA. Content creation whether it be movies, books, music, blogs (citizen journalism), websites ... has exploded. That simply isn't happening.
I agree that there are problems with the laws. For example copyright seems to last too long. But the complaints about about the DMCA are just ignoring the concept of copyright all-together. It might be reasonable to make copyright effectively unenforcible but the fact that the DMCA doesn't do that doesn't mean the law is abusive.
Right but the argument that everyone is making is that Qualcomm doesn't really think that and if they did a proper analysis on their side they would agree they were in the wrong. That the DMCA is putting too much of a burden on distributors. Your hypothetical is that Qualcomm would still believe it was theirs after a proper analysis. That's a much more serious matter and does deserve escalation.
Well it happened to the RIAA on copyright infringement lawsuits. They paid damages even for 3rd party collection agents which they authorized that crossed the line. I don't know if any involved the DMCA or not.
Developers of applications didn't want to drop part of the market. And the cycle becomes self feeding. Updates do less so customers feel less compelled to update.
That was Microsoft until recently. They were very worried about the bottom of the market and disruption from below. Now that it has happened they are shifting up market.
Your Bill Gates quote is excellent for that.
If Qualcomm's DMCA complaint indicates they believe they actually a specific part of the kernel that's not a BS complaint anymore. That's a legitimate copyright dispute. You probably shouldn't be distributing that code until the mess is cleaned up. The obvious thing to do then is that it escalates quickly to kernel.org to either come down firmly on one side or the other. It should be a big deal.
A DMCA takedown has no binding legal authority it simply notifies the distributor that the originators claim to have a valid license is disputed. Because everyone in all legal situations has an obligation not to facilitate criminal acts they need the originator to step up as the responsible party.
You can prove this by simply filing with your ISP strong claims of copyright in advance for all the content then if they get a DMCA order nothing happens.
If Qualcomm files in court (the next step after a DMCA) that it owns copyright on parts of the Linux Kernel (for example) it would need to assert why it believes it is their code. It is going to be hard for them to file a detailed document without being maliciously negligent or outright committing fraud. Think about it from their perspective, someone in Qualcomm has to write that long detailed document alleging all sorts of nonsense.
Your complaint is about the civil law system in general and how it handles parties of different means. I don't disagree with you, but there is nothing specific to the DMCA in that complaint. What you want is a replacement for DMCA but a replacement for the entire US civil law system.
Then what do you do if they are right? Shoot the individual violating copyright. This is a notice that requires a short trivial response. Get a grip.
This is the court system! The first step in a lawsuit is the parties establishing a disputed fact. Qualcomm has made a claim of copyright. The other party needs to establish they disagree.
The client most certainly is responsible for the actions of a paid agent acting on his behalf.
Agreed.
The burden is on Qualcomm. All the people have to do is file a notice with GitHub contesting their claim of copyright. That's it. It is a simple cross filing.
Qualcomm: (DMCA notice) This is our copyright
Individual X: No I have a license (show a little proof)
GitHub: Content goes back up
Now if Qualcomm wants to go to the next step that's a lawsuit and they have to prove their case by preponderance of the evidence.
That's always the case with distribution. If you assert you have copyright and somebody else disagrees then you are going to have a lawsuit.
Once you send the counter notice GitHub's legal problems are over. Now someone is clearly taking legal responsibility which is the point of the DMCA. I'm not sure why GitHub wouldn't put stuff back up. But if they don't that's their failure to understand the law.
Exactly. And those practices will probably get hit pretty hard when they go after the wrong people.
Hold on. Once it goes to court Qualcomm is falsely asserting copyright. That's fraud. There are most certainly damages people have collected against fraudulent claims of wrongdoing. Ask the RIAA or the big banks paying fines for negligent foreclosure filings.
How am I wrong? What changed about cease and desist law. I understand you don't like the law but that's not the same thing.
And there is no taking their wallet. Under normal distribution agreements you provide proof of license to a distributor prior to distribution. That's still allowed and then the DMCA notices don't matter. The DMCA simply established the rules for distributors who don't have licenses prior to distribution if the license is contended.
I understand and agree. This applies to the entire USA civil court system. The claim was that DMCA was some huge change unlike the rest of our system. Your complaint is more general.
Probably pretty close to 0. You file and Qualcomm would back down and settle fast if this material is really clear cut open source which is what everyone is assuming. If it goes the distance around a house+ given Qualcomm's deep pockets. But that's a problem with the USA system across the board not just the DMCA.
That's normative. The DMCA says that distributor X can assume content is legal, they don't have to have a process prior to distribution to check license; which would be the alternative. But... if someone claims copyright then they need to establish that their is a license. Someone has to step forward and agree they are taking legal responsibility to distribute stuff.
If Qualcomm after careful examination still believes they own copyright that isn't the situation everyone is complaining about but another question. You are asserting you are properly licensed. Qualcomm would be asserting they have copyright. Given this is GitHub you are talking open source software. That should be an easy suit. This is exactly what people are asking for, that Qualcomm look carefully.
I used the word distributors not ISPs.
Prior to the DMCA most distributors demanded proof of licensing prior to distributing. The DMCA establishes a process for a distributor (like GitHub) to distribute without a strong claim of license in their possession prior to distribution.
The legal process in the USA starts with negotiation between the parties. That's how it always works. Courts don't intervene in contracts until the parties can't come to agreement.
Before the DMCA you could issue a Cease and Desist in good faith that was factually wrong. That hasn't changed.
I understand. But the inequality between rich and poor in court ain't something new which is what GP was claiming. :)
There are other justice systems where wealth is less of a factor which have other different minus.
Yes. The RIAA got their head handed to them for these sorts of claims. In a sort of related ways banks have paid 10 digit fines collectively for false foreclosure notices.