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posted by cmn32480 on Sunday November 06 2016, @11:46AM   Printer-friendly
from the big-blue-going-for-the-kill dept.

Several years ago Platform Computing (now owned by IBM) released an open source version of LSF (Platform Load Sharing Facility) -- their premier software product. LSF is a workload management platform and job scheduler for distributed HPC environments. In recent years that open source product has begun to flourish, and now IBM is using the DMCA in an attempt to erase all progress made on the project since it was first released. I guess if you can't compete, you call your legal team...

As posted on the OpenLava mailing list:

> Hello all, this is David Bigagli the founder of OpenLava, I am writing
> on behalf of the OpenLava project. As some or most of you might have
> noticed the GPL2 OpenLava project is under attack by the IBM
> corporation. The github software repository have been shut down under
> the US DMCA law and now the OpenLava website www.openlava.org, hosted
> on Amazon S3, which provides the source code to the latest 4.0 and 3.0
> version will be shut down in the next 24 hours unless the source code
> is removed.
>
> IBM claims that the versions of OpenLava starting from 3.0 infringe
> their copyright and that some source code have been stolen from them,
> copied, or otherwise taken from their code base.
>
> I have developed most of the OpenLava code and I have reviewed all
> contributions. All this development was done without access to any
> IBM code. All IBM claims regarding the source code are false and
> fabricated.

Full release from OpenLava is here: http://www.openlava.org/download/download.html


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  • (Score: 2, Interesting) by Anonymous Coward on Sunday November 06 2016, @04:00PM

    by Anonymous Coward on Sunday November 06 2016, @04:00PM (#423145)

    Yes, he has an absolutely amazing case here.

    It's a real DMCA notice, and they are claiming "includes unauthorized copies of IBM's Software" (it does not).

    Then, in the actual filing, there is also "I swear, under penalty of perjury, that the information in this letter is accurate and that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

    This lawyer committed perjury on behalf of IBM as this is inaccurate. Furthermore, they claim an exclusive right which is factually untrue as OpenLava is based entirely on a GPL release. So, perjury at least twice. Good times.

    Seriously hope this guy runs it past the EFF.

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  • (Score: 0) by Anonymous Coward on Sunday November 06 2016, @06:21PM

    by Anonymous Coward on Sunday November 06 2016, @06:21PM (#423201)

    If the case involves the source code that was already released under the GPL when IBM acquired the company, then obviously IBM has no case. I'm guessing there's more to it than that, at least in IBM's opinion.

  • (Score: 2) by HiThere on Sunday November 06 2016, @07:00PM

    by HiThere (866) on Sunday November 06 2016, @07:00PM (#423215)

    IIUC:
    I didn't actually read the notice, just scanned it, but usually the lawyer is swearing that he is acting in good faith, believes his client, and is authorized to represent the client. The client doesn't swear anything, and the lawyer is allowed to believe his client. So if he is indeed authorized, then no perjury has been committed.

    That's the way I've heard it explained in the past. I'm no lawyer so I can't guarantee that that's the way it would get interpreted, but a quick scan didn't turn up anything contradicting that.

    --
    Put not your faith in princes.
    • (Score: 2) by Whoever on Sunday November 06 2016, @07:16PM

      by Whoever (4524) on Sunday November 06 2016, @07:16PM (#423217)

      Scanning isn't sufficient.
      1. A clear claim of infringement:

      It recently has come to IBM's attention that a software project titled "openlava" has been uploaded to GitHub, Inc.'s ("GitHub") website and includes unauthorized copies of IBM's Software (the "Infringing Software").

      2. Some weasel words:

      I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner,

      So which is it, Mr/Ms [Private laywer]? The software is infringing (first quote), or you only have a good faith belief that it is infringing (second quote)?

      If any claim of perjury is made, clearly the lawyer will point to the "good faith belief". The real question is, can the lawyer justify a good faith belief? What investigation did he/she do to establish that good faith?

    • (Score: 2) by darkfeline on Sunday November 06 2016, @08:23PM

      by darkfeline (1030) on Sunday November 06 2016, @08:23PM (#423241) Homepage

      This was my understanding of DMCA notices as well. The entire system is rigged in favor of big media, after all.

      We really need an amendment to the law that a DMCA notice must also include an affidavit from the client swearing on penalty of perjury that infringement has occurred.

      • (Score: 2) by Anal Pumpernickel on Monday November 07 2016, @03:04AM

        by Anal Pumpernickel (776) on Monday November 07 2016, @03:04AM (#423377)

        What we need is to get rid of DMCA notices completely, since mandating that websites censor first and ask questions later is unconstitutional.

        • (Score: 2, Disagree) by TheRaven on Monday November 07 2016, @11:14AM

          by TheRaven (270) on Monday November 07 2016, @11:14AM (#423443) Journal

          The idea behind DMCA notices isn't bad (though Google's implementation is). If I claim something is infringing, I notify the site operator and they take it down immediately. Fine so far and if it is infringing then that was probably better for both parties than taking it to court. If it isn't infringing, then the person who posted it files a counter notice and it's back up and, importantly, the hosting company is now protected. If I still believe that it's infringing, then I must take the person to court.

          Without any similar mechanism, GitHub could be sued for anything that a third party hosts. This is one of the things that the DMCA was intended to fix (it's not a totally bad law, it's only 80% bad). With the safe harbour provision but without an equivalent of DMCA notices, IBM would immediately file a lawsuit against the infringing party and you really don't want to go to court against IBM even if you're right.

          The real problem with DMCA notices is that they're asymmetric. If I file a DMCA notice and the hosting provider doesn't take down the content, then they lose their safe harbour status and become liable for any copyright infringement. If you then file a countersuit and they don't reinstate it, then they retain their safe harbour status, in spite of actively censoring content based on presumptions of copyright infringement. GitHub is pretty good about this: they'll reinstate a project as soon as they get the counter notice. YouTube and other Google things typically won't. The real requirement for being a neutral safe harbour needs to be that you actually are neutral: if someone files a counter notice then you should be required to reinstate the content. If you're not then you're making judgements about the content that you host which ought to legally remove your safe harbour status.

          --
          sudo mod me up
          • (Score: 3, Informative) by Anal Pumpernickel on Monday November 07 2016, @12:27PM

            by Anal Pumpernickel (776) on Monday November 07 2016, @12:27PM (#423452)

            The idea behind DMCA notices isn't bad (though Google's implementation is). If I claim something is infringing, I notify the site operator and they take it down immediately.

            That is bad. I don't like copyright at all, but at the very least, they should have to see a judge before censorship is required. As it is, if a website doesn't comply with these censor-first takedown notices, they lose safe harbor status. Instead, we should get rid of the DMCA takedown notices and keep safe harbor.

            Without any similar mechanism, GitHub could be sued for anything that a third party hosts

            No, that's a false dichotomy invented by copyright cultists.

            To begin with, I don't value people being able to conveniently stop others from infringing upon their copyrights above other core principles such as due process, just as I don't value stopping criminals more than I value the 4th amendment. Saying that DMCA takedown notices makes it easier to stop copyright infringement doesn't matter to me; the ends certainly don't justify the means. Requiring due process and still keeping safe harbor would eliminate a grand majority of the malicious censorship and false positives that occur and force copyright thugs to only go after big offenders.