dmca/2018/2018-02-14-POLQA.md

**Are you the copyright owner or authorized to act on the copyright owner's behalf?**  
Yes

**Please provide a detailed description of the original copyrighted work that has allegedly been infringed. If possible, include a URL to where it is posted online.**  

This is an email from the content owner:
“Explanations and evidence:

(1) POLQA/P.863 IPR license pool
We act on behalf of the “POLQA coalition” representing the patent pool of the developers of recommendation P.863.x. The POLQA Coalition consists of OPTICOM GmbH, GERMANY; SwissQual – a Rohde & Schwarz Company, Switzerland; TNO and KPN, the Netherlands. All of these four parties are co-developers of P.863 and own copyrights and standard essential patents. OPTICOM GmbH further owns the trademark “POLQA” for commercial implementations of P.863.

(2) ITU Copyright and Patent Policy
Recommendation P.863 has been adopted by the ITU according to the "ITU Patent Policy, Sec. 2.2", i.e. the patent holders are willing to negotiate licenses with third parties based on fair, reasonable and non-discriminatory terms. (For further details, you may want to refer to our FAQ section http://www.polqa.info/information/faq.html
on our POLQA microsite.) In other words, even if you were going to develop an independent implementation of P.863 according to the published documentation, this code would still be subject to a patent license with the IPR owners. Under Cross-license arrangements, OPTICOM GmbH forms the sole patent licensing pool on behalf of the POLQA coalition. As it seems, currently you are not operating under a license agreement from us.

Effectively this also means that a license-fee bearing patent policy with a SDO (standards developing organization) is already in place. As a consequence, an implementation cannot be published under a differing/conflicting licensing policy, like e.g. OSS. And in particular not by someone, who does not own the IPRs.

(3) Violation of GPL License
We would therefore like to draw your attention to the fact that the ITU IPR policy 2.2 omits publication, or use under any other license program, in particular such as GPL, or Open Source. So it is not permitted to release any source code under a different license program, and in particular not an Open Source license. This would be a clear violation of the FRAND ITU license program that is in place for P.863/POLQA. Put simply you cannot publish any rights you do not own. Under the ITU license program we are obliged to ensure that every licensee will adhere to the governing FRAND terms, and for sure, your approach would be discriminatory with regard to the existing licensee base. Consequently, in the interest of our existing licensee base, the POLQA coalition would have no other choice than going for litigation. For the avoidance of doubt, this does not apply as long as you keep your implementation in confidence and use it within your enterprise under the terms of a license agreement to be agreed upon with OPTICOM.

(4) Unpermitted use of ITU Copyrights
Further we want to draw your attention to the disclaimer of ITU-T P.863:

The last sentence reads: “No part of this publication may be reproduced by any means whatsoever, without the prior written permission of ITU”. We certainly doubt that you have a written permission of the ITU and have therefore forwarded this case to the Telecommunication Standards Bureau of the ITU for further investigation.

Given the above intellectual property disclaimer, your GitHub approach to publish code sources under GPL is an inherent violation of the GPL terms itself. Your attention is drawn to lines 499 following of the GPL terms you have published:
+ If you convey a covered work, knowingly relying on a patent license,

+and the Corresponding Source of the work is not available for anyone

+to copy, free of charge and under the terms of this License, through a

+publicly available network server or other readily accessible means,

+then you must either (1) cause the Corresponding Source to be so

+available, or (2) arrange to deprive yourself of the benefit of the

+patent license for this particular work, or (3) arrange, in a manner

+consistent with the requirements of this License, to extend the patent

+license to downstream recipients. "Knowingly relying" means you have

+actual knowledge that, but for the patent license, your conveying the

+covered work in a country, or your recipient's use of the covered work

+in a country, would infringe one or more identifiable patents in that

+country that you have reason to believe are valid.

(5) Trademark Infringement
POLQA is a registered trademark:
POLQA®
German Trademark No. 30 2010 004 843 granted for Class 09 and 42, 09.02.2010
International Trademark No. 1 046 056 for Class 09 and 42, 22.06.2010, WIPO Gazette of International Marks No. 2010/32

In summary, we are happy to support you if you are in need of a standard conforming implementation of ITU-T P.863. Please refer to our microsite www.polqa.org where you will find a directory of vendors, offering off-the-shelf conforming implementations of POLQA. In case you prefer to develop your own implementation of the standard, we are prepared to offer you a license agreement on standard ITU FRAND terms.

However, by your current approach with GitHub, you are likely infringing upon (a) the copyrights of the ITU and (b) the copyrights, the standard-essential patents of the POLQA coalition. (c) Your unauthorized usage of the mark “POLQA” represents a clear trademark infringement.”

**What files should be taken down? Please provide URLs for each file, or if the entire repository, the repository's URL:**  

https://github.com/Wang2009/POLQA

**Have you searched for any forks of the allegedly infringing files or repositories? Each fork is a distinct repository and must be identified separately if you believe it is infringing and wish to have it taken down.**  

Yes, this is the fork:  
https://github.com/Wang2009/POLQA

**Is the work licensed under an open source license? If so, which open source license? Are the allegedly infringing files being used under the open source license, or are they in violation of the license?**  

Details are copy-pasted above.

**What would be the best solution for the alleged infringement? Are there specific changes the other person can make other than removal?**  

No, complete removal must happen.

**Do you have the alleged infringer's contact information? If so, please provide it:**  

No.

**Type (or copy and paste) the following statement: "I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by the copyright owner, or its agent, or the law. I have taken fair use into consideration."**  

I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by the copyright owner, or its agent, or the law. I have taken fair use into consideration.

**Type (or copy and paste) the following statement: "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed."**  

I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

**Please confirm that you have you have read our Guide to Submitting a DMCA Takedown Notice: https://help.github.com/articles/guide-to-submitting-a-dmca-takedown-notice/**  

Yes.

**So that we can get back to you, please provide either your telephone number or physical address:**  

[private]  

**Please type your full legal name below to sign this request:**  

[private]