Patrick, I'm sure we'll agree that copyright infringement is a very
wide-spread problem resulting in people not getting paid for their work.
For notes, I strongly support the idea of people getting paid for their
work but I also strongly resist abuses of the legal system.
The only recourse for fighting copyright infringement is essentially
playing whack-a-mole. In desperation, both lawyers and normal
individuals typically resort to sending out DMCA take down notices in
bulk, and all too often, mistakes are made.
As far as I know, no one has been convicted for violating the perjury
clause of the DMCA for wrongfully sending take down notices. If someone
has access to a good legal research database, they might be able to
prove me wrong (and yes, I'd really like to know). This means there is
no real 'disincentive' for getting it wrong, and hence, it's what I
would personally consider a flaw in how the law is written.
The other thing is absolutely anyone can send a real, or intentionally
fake, DMCA take down notice and there is no way to either authenticate
the sender or contact the relevant court since sending the notice does
not require court notification (filing) or approval. Since there is no
required registration of copyrights, there is no way to ascertain the
legal owner of any work.
Take a close look at one of the two DMCA notices at github:
Q: Can you prove Bluehole Studio owns the copyright for tera?
A: nope.
Q: Can you prove this was sent by Bluehole Studio?
A: nope.
Q: Can you prove this was even sent?
A: nope.
The first thing to notice is the use of the title phrase "legal manager"
which intentionally obfuscates whether or not you're dealing with a
real lawyer (i.e. a real lawyer is an "officer of the court" and has
obligations to the court). Had the name been given, one could find out
whether or not this was sent by a lawyer.
The next thing to notice is:
"The aforementioned website is providing a private, illegal server, not authorized by Bluehole Studio Inc."
I obviously do not need the consent of Bluehole Studio Inc to run my
home mail server, so what the heck are they talking about? --They are
either intentionally being vague or they are totally incompetent,
potentially both for the ease of sending bulk DMCA notices.
Are they accusing github of running a "game server" on their machines?
Are they accusing github of hosting source code that allows others to
run their own game servers?
For the sake of argument, let's assume it is the latter; they want the
removal of source code that allows people to run their own game servers.
Sadly, if the source code was developed from scratch, there is no
copyright infringement, and it does not matter if the open source server
allows client programs copyrighted by Bluehole to connect and play. If
open source server is NOT a derivative work, then it is perfectly
legal to distribute, and even if it is competition to a pay-to-play
online gaming service.
If I created my own open source "Buzzword Bingo Card Creator" program
from scratch, and I got a DMCA take down notice from you or your lawyer,
I would be livid. I would fight you. I would win. And I would make you
pay for your mistake dearly. Unfortunately, I'm probably the exception
and it's mostly due to having a ton of lawyers in my family. It would
cost me nothing to make your life legally miserable, and since you
decided to throw the first legal punch at someone innocent, I'd
undoubtedly make you regret it. Unlike me, many open source developers
would just walk away due to not having the money, location and resources
to mount a legal defense, particularly if it was for a fun project they
did in their free time.
Black-listing open source developers for not having and spending the
money to defend their names when wrongfully accused of infringement
would be unfair. In other words, refusing to contest an all too easily
sent (or faked) DMCA take down notice is not the point when an accused
infringer should be named. The accusation is unproven. If the copyright
holder presses a civil suit against the accused infringer, then at that
point, the accused will be named in the court records. In essence, what
you want "named infringers" is already happening, and they are even
named when only accused rather than when the case is resolved.
The system of protecting the efforts of people making creative works is
broken and the world is imperfect. This is not news to anyone. The thing
is, the abuse of infringement does not justify the abuse of the legal
system.
BTW: If you created an online "Buzzword Bingo Card" game based on HN
articles actually read by HN users, that would be a whole lot of fun and
definitely worth buying a subscription. Since there's no way to prove an
article was read (other than just loading it), I'm not sure it's a
workable idea. None the less, its a fun thought.
The only recourse for fighting copyright infringement is essentially playing whack-a-mole. In desperation, both lawyers and normal individuals typically resort to sending out DMCA take down notices in bulk, and all too often, mistakes are made.
As far as I know, no one has been convicted for violating the perjury clause of the DMCA for wrongfully sending take down notices. If someone has access to a good legal research database, they might be able to prove me wrong (and yes, I'd really like to know). This means there is no real 'disincentive' for getting it wrong, and hence, it's what I would personally consider a flaw in how the law is written.
The other thing is absolutely anyone can send a real, or intentionally fake, DMCA take down notice and there is no way to either authenticate the sender or contact the relevant court since sending the notice does not require court notification (filing) or approval. Since there is no required registration of copyrights, there is no way to ascertain the legal owner of any work.
Take a close look at one of the two DMCA notices at github:
https://github.com/github/dmca/blob/e7821a3946f212f2c774362a...
Q: Can you prove Bluehole Studio owns the copyright for tera?
A: nope.
Q: Can you prove this was sent by Bluehole Studio?
A: nope.
Q: Can you prove this was even sent?
A: nope.
The first thing to notice is the use of the title phrase "legal manager" which intentionally obfuscates whether or not you're dealing with a real lawyer (i.e. a real lawyer is an "officer of the court" and has obligations to the court). Had the name been given, one could find out whether or not this was sent by a lawyer.
The next thing to notice is:
"The aforementioned website is providing a private, illegal server, not authorized by Bluehole Studio Inc."
I obviously do not need the consent of Bluehole Studio Inc to run my home mail server, so what the heck are they talking about? --They are either intentionally being vague or they are totally incompetent, potentially both for the ease of sending bulk DMCA notices.
Are they accusing github of running a "game server" on their machines?
Are they accusing github of hosting source code that allows others to run their own game servers?
For the sake of argument, let's assume it is the latter; they want the removal of source code that allows people to run their own game servers. Sadly, if the source code was developed from scratch, there is no copyright infringement, and it does not matter if the open source server allows client programs copyrighted by Bluehole to connect and play. If open source server is NOT a derivative work, then it is perfectly legal to distribute, and even if it is competition to a pay-to-play online gaming service.
If I created my own open source "Buzzword Bingo Card Creator" program from scratch, and I got a DMCA take down notice from you or your lawyer, I would be livid. I would fight you. I would win. And I would make you pay for your mistake dearly. Unfortunately, I'm probably the exception and it's mostly due to having a ton of lawyers in my family. It would cost me nothing to make your life legally miserable, and since you decided to throw the first legal punch at someone innocent, I'd undoubtedly make you regret it. Unlike me, many open source developers would just walk away due to not having the money, location and resources to mount a legal defense, particularly if it was for a fun project they did in their free time.
Black-listing open source developers for not having and spending the money to defend their names when wrongfully accused of infringement would be unfair. In other words, refusing to contest an all too easily sent (or faked) DMCA take down notice is not the point when an accused infringer should be named. The accusation is unproven. If the copyright holder presses a civil suit against the accused infringer, then at that point, the accused will be named in the court records. In essence, what you want "named infringers" is already happening, and they are even named when only accused rather than when the case is resolved.
The system of protecting the efforts of people making creative works is broken and the world is imperfect. This is not news to anyone. The thing is, the abuse of infringement does not justify the abuse of the legal system.
BTW: If you created an online "Buzzword Bingo Card" game based on HN articles actually read by HN users, that would be a whole lot of fun and definitely worth buying a subscription. Since there's no way to prove an article was read (other than just loading it), I'm not sure it's a workable idea. None the less, its a fun thought.