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> This is clear DMCA abuse I’m generally skeptical of these claims as the legal system typically doesn’t look super fondly on technically-correct “I’m not touc

> This is clear DMCA abuse I’m generally skeptical of these claims as the legal system typically doesn’t look super fondly on technically-correct “I’m not touching you” arguments. So has this been litigated sufficiently to state this with such conviction? I’m not sufficiently familiar to know.

throwaway327843 7y ago
Let's sail the high seas matey! https://github.com/Igglybuff/awesome-piracy https://github.com/Igglybuff/awesome-piracy
- znpy 7y ago
  I'm cloning that, just in case.
jmspring 7y ago
I'm going with it was an excuse to make a unnamed dig at Microsoft owning Github.
Natsu 7y ago
Well, the DMCA is supposedly only for taking down things you actually have the copyright to. I don't think that most DMCA abuse ever gets litigated and a lot of it consists of spam letters claiming that X is infringing on their copyright of Y, even when this is absurd. Alas, the law only has perjury when their claim to own Y is false, not when their claim to own X is wrong, however absurd that claim my be. They may have other legal claims against PopcornTime for facilitating piracy on whatever basis, but I sincerely doubt they actually own any of the copyrights to the code itself, which is ostensibly what they claim when filing a DMCA claim. But hosts generally respond even to defective DMCA notices, so they've learned just to demand takedowns first and sort anything else out after the fact. There's no reason to expend any effort if they can get what they want with a simple letter and that's something I've learned holds true across most legal endeavors. It seems like a lawyer's first action is almost always to draft a letter demanding whatever they want on whatever basis, oftentimes getting results for a single, rather expensive piece of legal letterhead.
Teever 7y ago
Either something is illegal or it isn't. There isn't some magical gray zone where someone can feel like something should be illegal and therefore the actions of someone else are illegal.
- zouhair 7y ago
  Here are some lock picking tools on Amazon[0], should they be made illegal for sell? Can you see the magical grey zone? [0]: https://www.amazon.ca/dp/B07Z1V1LBQ?tag=duc12-20&linkCode=osi&th=1&psc=1 https://www.amazon.ca/dp/B07Z1V1LBQ?tag=duc12-20&linkCode=os...
  - HenryBemis 7y ago
    I was thinking something similar. People use email or FTP, HTTPS, Chrome, Firefox, Edge, Intel, AMD, to share pirated material. Do we shut them down as well? Also, I am pretty sure that the person(s) behind popcorn have a copy of their code somewhere else (or at least they sync/backup to their machines every so often. So they will be fine. I think that this is just a tap on the back so they know that someone is NOW actively chasing them.
    - toyg 7y ago
      Man, they’ve been “chased” basically from day 1, this is not their first DMCA rodeo. It’s just that the studios have been forced by the pandemic to concentrate exclusively on online channels. See for example the latest Trolls movie, which just made $100m in his first week on streaming: that’s considered fantastic (and possibly a turning point) but it’s still half of what the previous movie made with a classic release in theatres a few years ago. Most “tentpole” releases are on hold and they have to keep pumping ads to keep the hype up. Cashflow must be fairly tight. So the studios right now need all the help they can get, in order to squeeze money out of digital channels. Taking “off the board” alternatives like PopcornTime, even if just for the 2 weeks DMCA forces ISPs to obey, increases their chances. I would expect they’re ready to repeat the trick a few times from a few different entities, at least until the pandemic is over and people can go back to real (overpriced) popcorn.
mifreewil 7y ago
isn’t popcorn time nothing more than a BitTorrent client with a video player? https://superuser.com/questions/617264/difference-between-bittorrent-and-p2p-services-like-napster-limewire https://superuser.com/questions/617264/difference-between-bi...
- tbodt 7y ago
  It also includes a scraper for various torrent sites, which was the only part of the code specifically targeted by the takedown notice
michaelmrose 7y ago
There is no such thing as a DMCA notice for contributory copyright infringement. A DMCA take down notice describes a particular resource that the claimant claims to be their intellectual property. It is a straightforward I own foo. Using it to take down a tool that helps people access foo is perjury. It's just that we will actually jail people for committing the kind of crimes poor people commit but we refuse to prosecute the crimes rich people commit. It's entirely possible that in the scope of another legal action the parties behind popcorn time might lose out THAT unlike this is the actually complex question. This is pretty straightforward. You can only take down popcorn time if you can claim to own it thus its just the kind of crime we allow rich people to perpetrate upon poor people.
- balls187 7y ago
  > You can only take down popcorn time if you can claim to own it thus its just the kind of crime we allow rich people to perpetrate upon poor people. In the US, the DMCA makes a criminal offense to circumvent access control. As with many matters, the law isn't necessarily black and white (coincidentally, today was the first time the SCOTUS heard a arguments via teleconference--that audio was streamed live, and the subject was whether or not the PTO could block a trademark on Booking.com), and it would be up to challenge in court. I suspect that whether an open source repository that allows anyone with technical know-how to build software to partake in copyright infringement--is subject to DMCA, would be a matter for the courts to decide. I could see one argument--plans to create a 3d printed gun are controlled, and a federal court has ruled those plans cannot be put online.
  - duskwuff 7y ago
    > In the US, the DMCA makes a criminal offense to circumvent access control. Correct. However: 1) The DMCA takedown process only applies to direct copyright violations, not to circumvention tools. Part of a properly formed takedown request is an affadavit that the content infringes upon the requester's copyright; the request in the OP is technically deficient, and GitHub made an error by honoring it. 2) PopcornTime is not a circumvention tool. It does not itself bypass any forms of rights protection; it merely distributes content (which might have been obtained through the use of circumvention tools, but that's besides the point).
wpietri 7y ago
My limited understanding is that the DMCA does forbid circumvention: https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201 However, the section involving takedown notices doesn't seem to be related: https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 So as best as my non-lawyer brain can figure, one shouldn't use the DMCA to take down anything other that content that infringes the copyright of the person sending the DMCA notice. Since the attachments to the DMCA notice were redacted, we can't see what they're claiming as direct infringement. However, I'm not sure it's Github's job to decide that. In theory PopcornTime can file a counternotice saying the do indeed own everything in the repo.
- bdcravens 7y ago
  They have: https://github.com/github/dmca/blob/master/2020/05/2020-05-04-MPA-counternotice.md https://github.com/github/dmca/blob/master/2020/05/2020-05-0...
- littlestymaar 7y ago
  > However, I'm not sure it's Github's job to decide that. In theory PopcornTime can file a counternotice saying the do indeed own everything in the repo. They'll probably do so, as it's not the first time this happen to them, I guess now they know pretty well how to deal with that kind of harassment.
- saagarjha 7y ago
  I believe last time the attachments were screenshots of the application showing the available content, so I'm sure it's similar this time as well.
- Dylan16807 7y ago
  Also, Popcorn Time doesn't circumvent anything. It only distributes and plays.
littlestymaar 7y ago
But it's not the first time popcorn time gets shut down because of a DMCA request. Yet it has been re-enabled every time, that's a clear indication of a DMCA abuse IMHO.
opinologo 7y ago
Using the same argument you could forbid internet or computers (or even both) because they facilitate copyright abuse.
- gpm 7y ago
  Intent matters.
  - opinologo 7y ago
    in a broad sense internet is for sharing information. Hence facilitating copyright abuse..
  - koonsolo 7y ago
    In Belgium, you have to pay a fee when buying storage because "hey, you might store copyrighted material on there". So "intent" can be pretty broad according to the copyright mafia.
    - koonsolo 7y ago
      Hey thanks for the downvote! I'm guessing it's because of the use of "mafia". Here is the rule for truck drivers listening to the radio in their truck: they have to pay extra copyright fee because they are listening in their work environment, and therefore the normal copyright that radio is already paying is not enough.
  - wtallis 7y ago
    Not as much as you probably think it does. Most of the important legal cases about filesharing/P2P systems and contributory infringement have hinged on whether the service operators had actual knowledge of infringement by their users, not merely a reasonable suspicion that their users expected to be able to use the software for infringement.
esarbe 7y ago
You cannot claim copyright on data you have no copyright on. They are not even claiming copyright on any of the files in the repo. So, yes; this is a clear case of DMCA abuse.
jchw 7y ago
IANAL, but I believe in US case law, source code has been ruled to be free speech. Even if the tool itself is implicated in being used for piracy in some way, the code for it should still have strong First Amendment protections. I guess we’ll all find out.

throwaway327843 7y ago

Let's sail the high seas matey! https://github.com/Igglybuff/awesome-piracy https://github.com/Igglybuff/awesome-piracy

znpy 7y ago
I'm cloning that, just in case.

jmspring 7y ago

I'm going with it was an excuse to make a unnamed dig at Microsoft owning Github.

Natsu 7y ago

Well, the DMCA is supposedly only for taking down things you actually have the copyright to. I don't think that most DMCA abuse ever gets litigated and a lot of it consists of spam letters claiming that X is infringing on their copyright of Y, even when this is absurd. Alas, the law only has perjury when their claim to own Y is false, not when their claim to own X is wrong, however absurd that claim my be. They may have other legal claims against PopcornTime for facilitating piracy on whatever basis, but I sincerely doubt they actually own any of the copyrights to the code itself, which is ostensibly what they claim when filing a DMCA claim. But hosts generally respond even to defective DMCA notices, so they've learned just to demand takedowns first and sort anything else out after the fact. There's no reason to expend any effort if they can get what they want with a simple letter and that's something I've learned holds true across most legal endeavors. It seems like a lawyer's first action is almost always to draft a letter demanding whatever they want on whatever basis, oftentimes getting results for a single, rather expensive piece of legal letterhead.

Teever 7y ago

Either something is illegal or it isn't. There isn't some magical gray zone where someone can feel like something should be illegal and therefore the actions of someone else are illegal.

zouhair 7y ago
Here are some lock picking tools on Amazon[0], should they be made illegal for sell? Can you see the magical grey zone? [0]: https://www.amazon.ca/dp/B07Z1V1LBQ?tag=duc12-20&linkCode=osi&th=1&psc=1 https://www.amazon.ca/dp/B07Z1V1LBQ?tag=duc12-20&linkCode=os...
- HenryBemis 7y ago
  I was thinking something similar. People use email or FTP, HTTPS, Chrome, Firefox, Edge, Intel, AMD, to share pirated material. Do we shut them down as well? Also, I am pretty sure that the person(s) behind popcorn have a copy of their code somewhere else (or at least they sync/backup to their machines every so often. So they will be fine. I think that this is just a tap on the back so they know that someone is NOW actively chasing them.
  - toyg 7y ago
    Man, they’ve been “chased” basically from day 1, this is not their first DMCA rodeo. It’s just that the studios have been forced by the pandemic to concentrate exclusively on online channels. See for example the latest Trolls movie, which just made $100m in his first week on streaming: that’s considered fantastic (and possibly a turning point) but it’s still half of what the previous movie made with a classic release in theatres a few years ago. Most “tentpole” releases are on hold and they have to keep pumping ads to keep the hype up. Cashflow must be fairly tight. So the studios right now need all the help they can get, in order to squeeze money out of digital channels. Taking “off the board” alternatives like PopcornTime, even if just for the 2 weeks DMCA forces ISPs to obey, increases their chances. I would expect they’re ready to repeat the trick a few times from a few different entities, at least until the pandemic is over and people can go back to real (overpriced) popcorn.

mifreewil 7y ago

isn’t popcorn time nothing more than a BitTorrent client with a video player? https://superuser.com/questions/617264/difference-between-bittorrent-and-p2p-services-like-napster-limewire https://superuser.com/questions/617264/difference-between-bi...

tbodt 7y ago
It also includes a scraper for various torrent sites, which was the only part of the code specifically targeted by the takedown notice

michaelmrose 7y ago

There is no such thing as a DMCA notice for contributory copyright infringement. A DMCA take down notice describes a particular resource that the claimant claims to be their intellectual property. It is a straightforward I own foo. Using it to take down a tool that helps people access foo is perjury. It's just that we will actually jail people for committing the kind of crimes poor people commit but we refuse to prosecute the crimes rich people commit. It's entirely possible that in the scope of another legal action the parties behind popcorn time might lose out THAT unlike this is the actually complex question. This is pretty straightforward. You can only take down popcorn time if you can claim to own it thus its just the kind of crime we allow rich people to perpetrate upon poor people.

balls187 7y ago
> You can only take down popcorn time if you can claim to own it thus its just the kind of crime we allow rich people to perpetrate upon poor people. In the US, the DMCA makes a criminal offense to circumvent access control. As with many matters, the law isn't necessarily black and white (coincidentally, today was the first time the SCOTUS heard a arguments via teleconference--that audio was streamed live, and the subject was whether or not the PTO could block a trademark on Booking.com), and it would be up to challenge in court. I suspect that whether an open source repository that allows anyone with technical know-how to build software to partake in copyright infringement--is subject to DMCA, would be a matter for the courts to decide. I could see one argument--plans to create a 3d printed gun are controlled, and a federal court has ruled those plans cannot be put online.
- duskwuff 7y ago
  > In the US, the DMCA makes a criminal offense to circumvent access control. Correct. However: 1) The DMCA takedown process only applies to direct copyright violations, not to circumvention tools. Part of a properly formed takedown request is an affadavit that the content infringes upon the requester's copyright; the request in the OP is technically deficient, and GitHub made an error by honoring it. 2) PopcornTime is not a circumvention tool. It does not itself bypass any forms of rights protection; it merely distributes content (which might have been obtained through the use of circumvention tools, but that's besides the point).

wpietri 7y ago

My limited understanding is that the DMCA does forbid circumvention: https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201 However, the section involving takedown notices doesn't seem to be related: https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 So as best as my non-lawyer brain can figure, one shouldn't use the DMCA to take down anything other that content that infringes the copyright of the person sending the DMCA notice. Since the attachments to the DMCA notice were redacted, we can't see what they're claiming as direct infringement. However, I'm not sure it's Github's job to decide that. In theory PopcornTime can file a counternotice saying the do indeed own everything in the repo.

bdcravens 7y ago
They have: https://github.com/github/dmca/blob/master/2020/05/2020-05-04-MPA-counternotice.md https://github.com/github/dmca/blob/master/2020/05/2020-05-0...
littlestymaar 7y ago
> However, I'm not sure it's Github's job to decide that. In theory PopcornTime can file a counternotice saying the do indeed own everything in the repo. They'll probably do so, as it's not the first time this happen to them, I guess now they know pretty well how to deal with that kind of harassment.
saagarjha 7y ago
I believe last time the attachments were screenshots of the application showing the available content, so I'm sure it's similar this time as well.
Dylan16807 7y ago
Also, Popcorn Time doesn't circumvent anything. It only distributes and plays.

littlestymaar 7y ago

But it's not the first time popcorn time gets shut down because of a DMCA request. Yet it has been re-enabled every time, that's a clear indication of a DMCA abuse IMHO.

opinologo 7y ago

Using the same argument you could forbid internet or computers (or even both) because they facilitate copyright abuse.

gpm 7y ago
Intent matters.
- opinologo 7y ago
  in a broad sense internet is for sharing information. Hence facilitating copyright abuse..
- koonsolo 7y ago
  In Belgium, you have to pay a fee when buying storage because "hey, you might store copyrighted material on there". So "intent" can be pretty broad according to the copyright mafia.
  - koonsolo 7y ago
    Hey thanks for the downvote! I'm guessing it's because of the use of "mafia". Here is the rule for truck drivers listening to the radio in their truck: they have to pay extra copyright fee because they are listening in their work environment, and therefore the normal copyright that radio is already paying is not enough.
- wtallis 7y ago
  Not as much as you probably think it does. Most of the important legal cases about filesharing/P2P systems and contributory infringement have hinged on whether the service operators had actual knowledge of infringement by their users, not merely a reasonable suspicion that their users expected to be able to use the software for infringement.

esarbe 7y ago

You cannot claim copyright on data you have no copyright on. They are not even claiming copyright on any of the files in the repo. So, yes; this is a clear case of DMCA abuse.

jchw 7y ago

IANAL, but I believe in US case law, source code has been ruled to be free speech. Even if the tool itself is implicated in being used for piracy in some way, the code for it should still have strong First Amendment protections. I guess we’ll all find out.