My point wasn't that it was likely that anybody filing a counter-claim would be sued. I merely am saying that it is possible, which means they're taking a risk, and they probably stand to gain nothing personally by taking it. That is likely to have a chilling effect.

No question it has a chilling effect. Right now we have a very wide open casual publishing culture and a legal framework designed for a formal publishing culture. At their point of contact things are messy. My point is that the DMCA isn't the problem. The problem is that if people are worried about getting sued for content they need to respond to cease and desist.

If we did what most of the other people recommend Qualcomm would be suing that out of the blue with no warning.

A cease and desist order on other topics can turn an unintentional act int an intentional one. DMCA and safe harbor is just a specific example of that. Cease and desist create intent, that is their point.

The easy way to see that is if the website presented information to the ISP of their licenses for everything in advance the DMCA wouldn't require any action other than passing that information back. It is legal to distribute content assuming everyone is properly licensed without establishing that first. That's very generous. Of course it is not legal to distribute content once someone contests the content and the originator won't at least claim they are licensed.

Publishing by any measures is exploding in the USA. Content creation whether it be movies, books, music, blogs (citizen journalism), websites ... has exploded. That simply isn't happening.

I agree that there are problems with the laws. For example copyright seems to last too long. But the complaints about about the DMCA are just ignoring the concept of copyright all-together. It might be reasonable to make copyright effectively unenforcible but the fact that the DMCA doesn't do that doesn't mean the law is abusive.

Right but the argument that everyone is making is that Qualcomm doesn't really think that and if they did a proper analysis on their side they would agree they were in the wrong. That the DMCA is putting too much of a burden on distributors. Your hypothetical is that Qualcomm would still believe it was theirs after a proper analysis. That's a much more serious matter and does deserve escalation.

Well it happened to the RIAA on copyright infringement lawsuits. They paid damages even for 3rd party collection agents which they authorized that crossed the line. I don't know if any involved the DMCA or not.

Unspending users can only hold back technological progress if software vendors keep maintaining obsolete technology to please them. Which doesn't make much sense

Developers of applications didn't want to drop part of the market. And the cycle becomes self feeding. Updates do less so customers feel less compelled to update.

except in the context of trying to keep meaningful competition from arising.

That was Microsoft until recently. They were very worried about the bottom of the market and disruption from below. Now that it has happened they are shifting up market.

Your Bill Gates quote is excellent for that.

If Qualcomm's DMCA complaint indicates they believe they actually a specific part of the kernel that's not a BS complaint anymore. That's a legitimate copyright dispute. You probably shouldn't be distributing that code until the mess is cleaned up. The obvious thing to do then is that it escalates quickly to kernel.org to either come down firmly on one side or the other. It should be a big deal.

A DMCA takedown has no binding legal authority it simply notifies the distributor that the originators claim to have a valid license is disputed. Because everyone in all legal situations has an obligation not to facilitate criminal acts they need the originator to step up as the responsible party.

You can prove this by simply filing with your ISP strong claims of copyright in advance for all the content then if they get a DMCA order nothing happens.

If Qualcomm files in court (the next step after a DMCA) that it owns copyright on parts of the Linux Kernel (for example) it would need to assert why it believes it is their code. It is going to be hard for them to file a detailed document without being maliciously negligent or outright committing fraud. Think about it from their perspective, someone in Qualcomm has to write that long detailed document alleging all sorts of nonsense.

Your complaint is about the civil law system in general and how it handles parties of different means. I don't disagree with you, but there is nothing specific to the DMCA in that complaint. What you want is a replacement for DMCA but a replacement for the entire US civil law system.

Then what do you do if they are right? Shoot the individual violating copyright. This is a notice that requires a short trivial response. Get a grip.

This is the court system! The first step in a lawsuit is the parties establishing a disputed fact. Qualcomm has made a claim of copyright. The other party needs to establish they disagree.

Additionally, IIUC, if the accuser acts through legal agents (lawyers) then even clearly fraudulent takedown notices don't have ANY risk. The lawyer is entitled to have a "good faith" trust in his client, and the client isn't filing the takedown notice.

The client most certainly is responsible for the actions of a paid agent acting on his behalf.

Agreed.

You are making the accusation. Why should the burden not be on you?

The burden is on Qualcomm. All the people have to do is file a notice with GitHub contesting their claim of copyright. That's it. It is a simple cross filing.

Qualcomm: (DMCA notice) This is our copyright
Individual X: No I have a license (show a little proof)
GitHub: Content goes back up

Now if Qualcomm wants to go to the next step that's a lawsuit and they have to prove their case by preponderance of the evidence.

That's always the case with distribution. If you assert you have copyright and somebody else disagrees then you are going to have a lawsuit.

Once you send the counter notice GitHub's legal problems are over. Now someone is clearly taking legal responsibility which is the point of the DMCA. I'm not sure why GitHub wouldn't put stuff back up. But if they don't that's their failure to understand the law.

Really, the take-down notice procedure in the DMCA is IMHO one of the better things in that law as it means you don't automatically need to hire a lawyer if somebody is getting pissy about something you've put on-line. I agree that some abusive practices of some companies should be smacked down by a judge and perhaps some corrective legislation imposing penalties for its abuse should be imposed as well, but I consider that to be tweaks on what is really a pretty good law.

Exactly. And those practices will probably get hit pretty hard when they go after the wrong people.