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> A DMCA take down notice describes a particular resource that the claimant claims to be their intellectual property. According to the text of the relevant sta

by kd5bjo 6y ago

> A DMCA take down notice describes a particular resource that the claimant claims to be their intellectual property. According to the text of the relevant statute (17 U.S.C. 512c), the purpose of the notification is to inform GitHub of “facts or circumstances from which infringing activity is apparent” (1.A.ii), and the notice should include, among other things, “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by ... the law” (3.A.v). The notice provides the Grokster verdict as evidence for their good-faith belief that distributing the source code isn’t allowed by copyright law. I won’t get into whether or not Grokster should apply, as I haven’t read it and am not a lawyer. But, on the face of things, this seems like one kind of scenario envisioned by the drafters of the statute. That’s ultimately a good thing, because otherwise GitHub would not be eligible for 512(c)’s immunity in this or similar cases, and would need to keep an army of lawyers on staff to evaluate the copyright status of all the content that goes through thir systems.

wtallis 6y ago
> The notice provides the Grokster verdict as evidence for their good-faith belief that distributing the source code isn’t allowed by copyright law. Subsection c.1.A has very little to do with takedown notices. (c.1.C is the portion of c.1 that does.) The only part of the law that defines what a notice is supposed to include is 512.c.3.A. None of the six required elements listed by that subsection includes providing your legal theory. A DMCA takedown notice is only meant to be used to assert "hey, that's mine!": c.3.A.ii is where you identify what you own, and c.3.A.iii is where you point to it on someone else's server. If you don't own it, you cannot file a DMCA takedown over it, because you won't be able to fulfill c.3.A.ii.
- kd5bjo 6y ago
  c.1.C describes the effect of a notice in essentially the same terms as c.1.A.iii, which describe how to maintain immunity generally when informed of the circumstances in the other two clauses of c.1.A . My (possibly incorrect) interpretation of this is that notices of the form described in c.3 represent a sufficient de jure form of providing the information in c.1.A.iii that would void immunity if not acted upon. Other means of providing this information to the service provider also require them to act, but will need to be examined on a case-by-case basis in court. Also note that the infringed and infringing material are to be specified separately (c.3.a.ii,iii). In this case, the infringed material is a list of movies owned by the claimant that are distributed via PopcornTime. The infringing material is the PopcornTime software itself. Though they needn’t cite anything to justify their “good-faith belief” that the software itself is in violation of copyright law wrt. their IP, nothing prevents such a statement being present, either.
  - wtallis 6y ago
    > notices of the form described in c.3 represent a sufficient de jure form of providing the information in c.1.A.iii that would void immunity if not acted upon. A deficient notice attempting to trigger c.1.C doesn't get to use c.1.A as a fallback. This is guaranteed by c.3.B: > [...] a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. Additionally, you say: > Also note that the infringed and infringing material are to be specified separately (c.3.a.ii,iii). In this case, the infringed material is a list of movies owned by the claimant that are distributed via PopcornTime. The infringing material is the PopcornTime software itself. Contributory liability for infringement is not the same as the infringement itself. PopcornTime software does not include any of the movies (or portions thereof) owned by the studios complaining. PopcornTime software itself is not an infringing work on those movie copyrights. It is a tool intended to be used to commit infringement, so they will get in trouble when this goes to court, but it's a different kind of trouble from direct infringement. Consider this thought experiment: PopcornTime points users to a site that lists torrents of movies. If that's the same thing as infringing on the movie copyright itself, then PopcornTime infringes on every movie listed on that site, provided a PopcornTime user has at some point actually followed the links. Now let's assume PopcornTime development halts, but Hollywood carries on and a new movie is added to the site PopcornTime links to. Now PopcornTime is infringing on another copyright despite the PopcornTime software work not changing, and that movie copyright actually post-dates PopcornTime.
    - kd5bjo 6y ago
      > A deficient notice ... doesn’t get to use c.1.A as a fallback. That is extremely good to know; I hadn’t spotted that provision while skimming through things. I still believe that this was a non-deficient notice, though. Shall we take a look at the required elements as they apply here? (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The MPA claims to be authorized to act on behalf of the listed movie studios. I see no reason to suspect this claim, and presume the redacted signaturesvare legitimate. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Exhibit A (redacted) contains the titles and presumably other identifying information of movies owned by the studios represented by the MPA that are allegedly infringed by the Popcorn Time software. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Two specifc GitHub repositories are specifically identified by URL, and further clarified by the statement “ Our request is specifically aimed at the aforementioned repositories and does not concern any other related repositories.” Though not required, they provide some justification as to why they believe these repositories infringe their copyrights in the listed movies. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. This is presumably contained in the redacted signature block at the bottom of the notice. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law “ We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPA Member Studios in the manner occurring via the Project is not authorized by the copyright owners, their agents, or the law.” (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. “The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein.”

by kd5bjo 6y ago

wtallis 6y ago

> The notice provides the Grokster verdict as evidence for their good-faith belief that distributing the source code isn’t allowed by copyright law. Subsection c.1.A has very little to do with takedown notices. (c.1.C is the portion of c.1 that does.) The only part of the law that defines what a notice is supposed to include is 512.c.3.A. None of the six required elements listed by that subsection includes providing your legal theory. A DMCA takedown notice is only meant to be used to assert "hey, that's mine!": c.3.A.ii is where you identify what you own, and c.3.A.iii is where you point to it on someone else's server. If you don't own it, you cannot file a DMCA takedown over it, because you won't be able to fulfill c.3.A.ii.

kd5bjo 6y ago
c.1.C describes the effect of a notice in essentially the same terms as c.1.A.iii, which describe how to maintain immunity generally when informed of the circumstances in the other two clauses of c.1.A . My (possibly incorrect) interpretation of this is that notices of the form described in c.3 represent a sufficient de jure form of providing the information in c.1.A.iii that would void immunity if not acted upon. Other means of providing this information to the service provider also require them to act, but will need to be examined on a case-by-case basis in court. Also note that the infringed and infringing material are to be specified separately (c.3.a.ii,iii). In this case, the infringed material is a list of movies owned by the claimant that are distributed via PopcornTime. The infringing material is the PopcornTime software itself. Though they needn’t cite anything to justify their “good-faith belief” that the software itself is in violation of copyright law wrt. their IP, nothing prevents such a statement being present, either.
- wtallis 6y ago
  > notices of the form described in c.3 represent a sufficient de jure form of providing the information in c.1.A.iii that would void immunity if not acted upon. A deficient notice attempting to trigger c.1.C doesn't get to use c.1.A as a fallback. This is guaranteed by c.3.B: > [...] a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. Additionally, you say: > Also note that the infringed and infringing material are to be specified separately (c.3.a.ii,iii). In this case, the infringed material is a list of movies owned by the claimant that are distributed via PopcornTime. The infringing material is the PopcornTime software itself. Contributory liability for infringement is not the same as the infringement itself. PopcornTime software does not include any of the movies (or portions thereof) owned by the studios complaining. PopcornTime software itself is not an infringing work on those movie copyrights. It is a tool intended to be used to commit infringement, so they will get in trouble when this goes to court, but it's a different kind of trouble from direct infringement. Consider this thought experiment: PopcornTime points users to a site that lists torrents of movies. If that's the same thing as infringing on the movie copyright itself, then PopcornTime infringes on every movie listed on that site, provided a PopcornTime user has at some point actually followed the links. Now let's assume PopcornTime development halts, but Hollywood carries on and a new movie is added to the site PopcornTime links to. Now PopcornTime is infringing on another copyright despite the PopcornTime software work not changing, and that movie copyright actually post-dates PopcornTime.
  - kd5bjo 6y ago
    > A deficient notice ... doesn’t get to use c.1.A as a fallback. That is extremely good to know; I hadn’t spotted that provision while skimming through things. I still believe that this was a non-deficient notice, though. Shall we take a look at the required elements as they apply here? (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The MPA claims to be authorized to act on behalf of the listed movie studios. I see no reason to suspect this claim, and presume the redacted signaturesvare legitimate. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Exhibit A (redacted) contains the titles and presumably other identifying information of movies owned by the studios represented by the MPA that are allegedly infringed by the Popcorn Time software. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Two specifc GitHub repositories are specifically identified by URL, and further clarified by the statement “ Our request is specifically aimed at the aforementioned repositories and does not concern any other related repositories.” Though not required, they provide some justification as to why they believe these repositories infringe their copyrights in the listed movies. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. This is presumably contained in the redacted signature block at the bottom of the notice. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law “ We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPA Member Studios in the manner occurring via the Project is not authorized by the copyright owners, their agents, or the law.” (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. “The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein.”