An Anonymous Coward writes:
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
Full release from OpenLava is here: http://www.openlava.org/download/download.html
What we need is to get rid of DMCA notices completely, since mandating that websites censor first and ask questions later is unconstitutional.
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.
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.