Qualcomm fires DMCA shotgun at alleged code thieves on GitHub – including itself

A company claiming to represent Qualcomm has shut down a number of repositories on source-code sharing site GitHub under provisions of the US Digital Millennium Copyright Act (DMCA) – including at least one repository belonging to Qualcomm itself. In a letter published by GitHub this week, web intelligence outfit Cyveillance …

[the spectacularly refined chap]

These are getting too much

This is hardly the first time perfectly legitimate content has had false claims made against it. Assuming that many of these files are indeed completely innocent and there has simply been some dumb or careless pattern match there needs to be some comeback on spurious requests such as these.

I know the DMCA is loaded in favour of the supposed rights holder but there should be some method of seeking true redress over and above getting the files restored in three weeks or so. Slander? Business disruption or loss of income? IANAL but perhaps someone more familiar with the law can point out possible avenues to pursue so these trolls get their comeuppance.

[Steve Knox]

Re: These are getting too much

Filing a false DMCA takedown is perjury, and false filers can be held responsible for damages. See, for example, https://www.eff.org/press/archives/2004/10/15

[Yet Another Anonymous coward]

Re: These are getting too much

It is only perjury if you lie about representing the rights holder. You do not swear that the files are infringing - that is why takedowns are so easy. The asymmetry comes from having to swear, under penalty of perjury, that they are not.

The reason diebold lost in court was that they admitted deliberately filing a false DMCA claim to stiffle free speech, which is something most US courts take rather a dim view of.

[foxyshadis]

Re: These are getting too much

That's absolutely not true. 17 USC Section 512(f):

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

I don't see anything about WHO you represent and a lot about WHAT you claim to represent.

[Yet Another Anonymous coward]

Re: These are getting too much

Yes you have to knowingly be lying to the court.

Demanding a takedown of a site because a search of *Office* matched "open office", or an episode of "the office" isn't a crime, so long as you were merely stupid.

[teebie]

Re: These are getting too much

"Yes you have to knowingly be lying to the court."

That is the law as written, but the argument that EFF made (when Hotfile countersued against Warner) that "[...]Any company could sidestep accountability for improper takedowns by simply outsourcing the process to a computer.[...]" *might* stand up in court (The Warner/Hotfile case was settled out of court)

[Bernardo Sviso]

Re: These are getting too much

That's the theory.

-- but here's what we see in practice:

MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use

https://www.techdirt.com/articles/20130911/18073124494/mpaa-gets-its-wish-court-basically-says-it-can-file-bogus-dmca-takedowns-without-concern-fair-use.shtml

Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown

https://www.techdirt.com/articles/20121017/10355320733/why-its-almost-impossible-to-get-punished-bogus-dmca-takedown.shtml

Warner Bros. Admits To Issuing Bogus Takedowns; Gloats To Court How There's Nothing Anyone Can Do About That

https://www.techdirt.com/articles/20131118/02152325272/warner-bros-admits-to-issuing-bogus-takedowns-gloats-to-court-how-theres-nothing-anyone-can-do-about-that.shtml

Talk about a rigged game...

[silent_count]

When's the next round of elections in the US? 'Cause I think I've got a solution.

All that's needed is a asset-free shell company and someone with enough time to issue DCMA takedowns for advertising from both major political parties. Every single bit. Anything with the image of an American flag, the word 'and', or the number '1', contains IP belonging to the shell company.

Or did they remember to add some weasel clause in the DCMA to exempt political material?

[Anonymous Coward]

Exemption is in copyright law

Country symbols cannot be copyrighted by a 3rd party. One of the reasons is exactly this - sabotage of political process through copyright restrictions.

So while you cannot copyright Stars and Stripes and the Bald Eagle, you can still copyright various forms of Donkeys and Elephants (thought I suspect the parties already hold copyright on those).

[Destroy All Monsters]

1) Freshly deskooled lawyer type unburdened by any knowledge discovers the tech sector.

2) Source code is very valuable right? I hear "hackers" are sharing this illegally on the Interwebs.

3) ???

4) RETARDATION, aided and abetted by the usual cloudy bendover.

[Jamie Jones]

"Presumed innocent until proved guilty"

I vaguely remember it...

[Real Ale is Best]

Re: "Presumed innocent until proved guilty"

Sadly this concept fell by the wayside some time ago.

[Paul Crawford]

Re: "Presumed innocent until proved guilty"

Presumed innocent unless proved guilty.

An important distinction.

[TheresaJayne]

Actually the people listed are using the Vuforia SDK licence incorrectly,

It specifically states under Section 2: Use Restrictions the distribution or disclosure of any source code - which github was doing - full extract here :https://developer.vuforia.com/legal/vuforia-30-license-agreement

You shall not incorporate, link, distribute or use any third party software or code in conjunction with (i) the Software (ii) any software, products, documentation, content or other materials developed using the Software, nor (iii) any derivative works that You make using the source code portions of the Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Software or other QCE software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any intellectual property rights or proprietary rights of QCE or its affiliates, including without limitation as such rights exist in or relate to the Software. Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use (1) the Software or any other software provided by QCE, (2) any software, products, documentation, content or other materials developed using the Software, nor (3) any derivative works that You make using the source code portions of the Software (if any), with any code or software licensed under any version of the GNU General Public License (“GPL”), Affero General Public License (“AGPL”), Lesser General Public License (“LGPL”), European Union Public License (“EUPL”), Apple Public Source License (“APSL”), Common Development and Distribution License (“CDDL”), IBM Public License (“IPL”), Eclipse Public License (“EPL”), Mozilla Public License (“MPL”), or any other open source license,

[John G Imrie]

Re: Actually the people listed are using the Vuforia SDK licence incorrectly,

I wonder if someone can get that paragraph thrown out under restriction of trade rules.

[teebie]

"Well I have as much right to the code as you do"

"I am you"

"Shut up"

[druck]

This will have been done by a IP Protection agency hired by Qualcomm, who will have googled "Qualcomm" and fired off DCMA takedowns without bother to check the ownership of any of the matches.

[OmgTheyLetMePostInTheUK]

Computer generated takedown notices need to be outlawed

After years of these computer generated takedown notices going to the wrong places, how about we outlaw them.

Or maybe even a better idea is to allow anyone that should NOT have gotten a takedown notice, but did, to be paid no less than $100,000 cash within 30 days receiving the takedown notice. Second instance of getting one of these wrongfully should get them $500,000, and a third and additional ones should get them $5,000,000 each time.The money should come from the company that hires the attorneys that send these things out. The attorneys that actually sign and send these takedown notices out, should also pay 50% of what the companies pay to the receiving party.

I am certain that would stop this crap almost instantly.

[EngineerAl]

Trade Secret?

How can someone claim infringement of a trade secret? Isn't a "trade secret" some piece of intellectual property someone decided *not* to copyright or patent so the "secret" can remain unknown outside the organization?

[CFWhitman]

Re: Trade Secret?

You're correct. A trade secret can be unlawfully revealed, but the secret itself cannot be directly protected. However, if an official document from a company is posted which reveals a trade secret, it can be ordered to be taken down. It's also possible (I'm not sure of the techicalities in this circumstance) that if a party who agreed to keep a trade secret (under an NDA) posted the trade secret, it could be taken down. There is no action, however, that the original party could take against someone who used the trade secret or reposted it after learning of it without signing an NDA.