4 ms·

So the DMCA requires identification of "material that is claimed to be infringing or to be the subject of infringing activity". It seems pretty clear that the r

So the DMCA requires identification of "material that is claimed to be infringing or to be the subject of infringing activity". It seems pretty clear that the requested content is not by itself infringing. Is anybody aware of case law on how the "subject of infringing activity" is to be read?

deleted 6y ago
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maxlybbert 6y ago
I’m sure the argument is that Napster- and Grokster-style contributory infringement is infringement. I have a hard time imagining source code enticing people to infringe copyright, but if the program encourages infringement, I suppose the repository is a logical target. I won’t predict whether the contributory infringement argument will win. I’m sure the law was written with direct infringement in mind, but I don’t think that rules out creative interpretations by itself. I believe the clearest approach would be for the MPA to not bother with a DMCA notice, and just sue the project directly. But if you can get what you want on the cheap, why not try? And I’m not sure a lawsuit against the project would do much good: even assuming the MPA were to get an injunction, they’d need to play whack-a-mole to track down anybody using the PopCornTime code.
- KenoFischer 6y ago
  Right, I concur with the reasoning that contributory infringement could be argued against the developers, but I think the interesting questions is whether that reasoning can be extended to the "material" under the takedown section - particularly as written. If so that seems like the kinds of thing that could get ugly very quickly. E.g. are instructions on how to google for infringing material suddenly infringing?
  - maxlybbert 6y ago
    I understood that DMCA notice/counternotice procedure was meant to provide a streamlined process for simple cases, which could be migrated to an actual court if necessary. I don’t like seeing it stretched to cover cases that aren’t so simple.
- notechback 6y ago
  Maybe their first aim is also to make it less accessible and reduce its use.

deleted 6y ago

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maxlybbert 6y ago

I’m sure the argument is that Napster- and Grokster-style contributory infringement is infringement. I have a hard time imagining source code enticing people to infringe copyright, but if the program encourages infringement, I suppose the repository is a logical target. I won’t predict whether the contributory infringement argument will win. I’m sure the law was written with direct infringement in mind, but I don’t think that rules out creative interpretations by itself. I believe the clearest approach would be for the MPA to not bother with a DMCA notice, and just sue the project directly. But if you can get what you want on the cheap, why not try? And I’m not sure a lawsuit against the project would do much good: even assuming the MPA were to get an injunction, they’d need to play whack-a-mole to track down anybody using the PopCornTime code.

KenoFischer 6y ago
Right, I concur with the reasoning that contributory infringement could be argued against the developers, but I think the interesting questions is whether that reasoning can be extended to the "material" under the takedown section - particularly as written. If so that seems like the kinds of thing that could get ugly very quickly. E.g. are instructions on how to google for infringing material suddenly infringing?
- maxlybbert 6y ago
  I understood that DMCA notice/counternotice procedure was meant to provide a streamlined process for simple cases, which could be migrated to an actual court if necessary. I don’t like seeing it stretched to cover cases that aren’t so simple.
notechback 6y ago
Maybe their first aim is also to make it less accessible and reduce its use.