On 5/16/06, Ray Saintonge <saintonge(a)telus.net> wrote:
Anthony DiPierro wrote:
So you send 1000 takedown orders, and they ignore
them all, then what?
At that point they open themselves to whatever penalties are associated
with violating the order rather than an infringement of copyright.
There is a separate legal process available to them if they want to
question the copyright.
Actually, that's not true. Ignoring a DMCA takedown order is not in
itself a violation of the law. It simply removes any safe-harbor that
the site would have otherwise had (which in the case of Baidu is
probably nil anyway), and establishes that any future copyright
infringement is willful.
This could be more
easily done by US Wikipedians because of their easier access to US
courts in every judicial district if it ever gets to that. Proving
damages would be difficult, but accepting the minimum statutory penalty
of $200 for each separate violation could have an interesting effect.
Don't you have to register the copyright in order to get statutory
damages? If so, then you're out $30 a pop. (I looked it up, not only
do you have to register to get statutory damages, you have to register
within 3 months of publication or before the infringement takes
place.)
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000412----000-…
I think that the Foundation has been negligent in failing to register
copyrights. Although it is not itself the owner of most of the
copyrights, it should be protecting the rights of its authors in a way
similar to what a magazine publisher would. This should involve
registering the entire database every month or two. Failing this,
what's to prevent any contributor from registring the entire database,
citing himself "and others" as authors? This would involve a single
payment of $30 for the whole thing.
Nothing, but if the entire database is considered a single work then
you won't get $200 for every article.
While damages might not be recoverable for the time
before registration,
they should be recoverable if they continue after registration.
Copyrights do not depend on registration by virtue of treaty
obligations.
Right. Copyrights don't depend on registration. But statutory
damages do. And yes, statutory damages would still be assigned if the
violations continue after registration. Whether or not they're
recoverable is another story. Do you plan on invading China to
collect them?
If the word "commencement" in that section
is taken too
strictly that would be inconsistent with that treaty obligation, and it
would open a gaping hole in US copyright law because it would amount to
effectively condoning almost any copyright infringement that took place
before registration and continued after registration.
Then you get your judgement, for $200 a pop. Now
how exactly do you
plan on collecting that $200 per violation?
Without looking more deeply into the offenders' particular situation, I
could not at this stage even begin to answer that question. Until we
have an actual judgement the question is moot.
In my opinion copyleft licenses are most useful
when used defensively.
If Baidu sues me, you can be sure I'll countersue. But short of
that...
That makes copyleft licences useless.
No it makes copyleft licenses particularly useful. If a copyleft
license was useless then no one could ever use the work without
permission.
In case you don't understand what I'm saying, the purpose of a
copyleft license is to allow the public to use a work freely, not to
provide the author with an avenue for lawsuits.
Wikipedia as a whole has shown
great (some would say excessive) dilligence in avoiding copyvios. It
also maintains copious data to trace the origins of anything in an
article. This makes the likelihood of such a suit remote. It means
that there is no realistic protection whatsoever for copyleft material.
Well, I never said copyleft licenses were useless when not used
defensively, I merely said that they were most useful when used
defensively.
But if you think a copyleft provides significant "protection"
(protection from what?), then I'm sure you'd have no trouble naming a
large number of significant lawsuits that were won by authors of
copyleft software.
Personally I can't think of any, but I'm sure there were a few.
It means that any downstream user, particularly a
commercial one, can
take anything from Wikipedia, and republish it under his own copyright
without any fear that it will be seriously challenged.
Take a look at [[Wikipedia:Mirrors and forks]] sometime. This is
exactly what hundreds of people/companies are doing.
I accept the
GFDL position to allow the material to be re-used by commercial
interests, but any commercial interest that uses it needs to acknowledge
its viral nature. Who defends that? Who defends it 20 years from now?
The "viral nature" of the GFDL is that any derivative of a GFDL
remains free. IOW, if Answers Corporation (for example) makes
modifications to Wikipedia, and then tries to sue people who
redistribute those modifications, they'd be subject to a countersuit
for violating the GFDL. This is that defensive use that I was talking
about, and this is where I expect copyleft would be most useful.
Anthony