[TUHS] Re: UNIX System V Release 2.2 gdts Vax-780

["G. Branden Robinson" <g.branden.robinson@gmail.com>]

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[replying only to list]

At 2023-03-15T20:36:06-0400, Rich Salz wrote:
> > Yea. However, there could be novel, perhaps untested, legal theories
> > one could use in this circumstance.
> 
> All you need is one person who can claim (or show) that they are a
> copyright holder to serve TUHS with a DMCA take-down, and kiss this
> group goodbye.

Speaking here as an observer of many DMCA fights over the past ~25
years, having become politically animated by it at the time of the law's
passage, but not as a person qualified to give legal advice (because I'm
not a lawyer)...

I would counsel against this sort of pessimism.  Sites survive DMCA
takedown notices all the time.  (Part of) the point of the takedown
notices prescribed by the DMCA is that if you comply with one, your
liability ends there.  Your whole site doesn't have to die, just the
infringing material.

https://www.legalzoom.com/articles/i-got-a-dmca-notice-now-what

Secondly, in a situation of obvious historical and educational
interest[1], arguably low commercial impact, and almost certainly no
meaningful trade secret implications[2], it's an issue worth
pursuing--if not on the TUHS site, then perhaps one set up for this
express purpose.

Thirdly, a DMCA takedown notice has specifically identify the allegedly
infringed work and the copyright holder.  For cases where the chain of
title is unclear or complicated by a multi-party revision history, this
may not so easily be asserted with confidence to a standard that would
satisfy the DMCA law.  How much money did IBM and SCOX(E) spend on this
very issue, with it _still_ remaining unresolved?  My guess is "more
than a rights holder could possibly hope to recover in damages even in a
lunatic fringe fantasty".

Fourthly, a DMCA takedown notice can be challenged with a
counter-notice.  If the takedown notice is defective, serving
counter-notice often (usually?) disposes of the issue for practical
purposes.[3]  The Electronic Frontier Foundation has taken on cases like
this, and won.  Doubtless many defective or even fraudulent takedown
notices have been successful because the recipient lacked the courage to
respond, demanding clarification as they are entitled to under the law.

Protecting ordinary Internet users and business from investigation,
seizure, and litigation by overbearing private firms and the government
agencies to which they've outsource enforcement is EFF's literal origin
story.[5]

They also happen to have attorneys-at-law, and _can_ dispense legal
advice.

Regards,
Branden

[1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

[2] I trust we all recall the amusement of reading the source to the
    System V "true" and "false" shell scripts on many thousands of
    machines accessible to college undergraduates, which were proclaimed
    as highly sensitive "UNPUBLISHED PROPRIETARY SOURCE CODE OF AT&T" or
    similar verbiage.

[3] It may be impossible to know any real data here.  Like the use of
    deadly force by U.S. police agencies[4], there is no reporting
    requirement for issuance of DMCA takedown notices, and almost
    certainly no interest among institutional copyright holders and
    their trade cartels (the MPAA, the RIAA, etc.) to report reception
    of counter-notices and the success rate of counter-notices at
    voiding the takedown notice.  (You can be sure we'd hear all about
    it if the success rate were extremely low.)

[4] https://www.cnn.com/2018/09/30/us/police-use-of-force-legislation/index.html

[5] https://en.wikipedia.org/wiki/Steve_Jackson_Games,_Inc._v._United_States_Secret_Service

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