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This is far from how it should work. The MPAA needed to certify a good faith belief the code was infringing. There is no reasonable way they could believe tha

This is far from how it should work. The MPAA needed to certify a good faith belief the code was infringing. There is no reasonable way they could believe that the code itself was infringing on their copyrights. The fact they had no concern at all filing a frivolous take-down request shows how broken the DMCA checks and balances are. This is a long standing problem [1] [1] https://www.mondaq.com/unitedstates/media-entertainment-law/30865/good-faith-belief-in-dmca-notice-and-takedown-provisions-requires-subjective-standard https://www.mondaq.com/unitedstates/media-entertainment-law/...

colejohnson66 6y ago
I don’t agree with what the MPAA did, but they didn’t claim the code was infringing on their rights. They claimed the code facilitated infringement, which is also not allowed under the DMCA.
- henriquez 6y ago
  It’s _arguably_ not allowed by the DMCA, but outside the scope of the notice-and-takedown provisions which only provide for takedown of specific infringing works. Statutory infringements outside of that very narrow scope would require a traditional lawsuit with actual court oversight. MPAA is not stupid and they knowingly abused the process in this case because they wanted to put Microsoft in a tight situation and gauge their response. Of course it went exactly as planned with Microsoft rolling over like every other tech company that won’t stand up for its users’ rights. This is _exactly_ why we need decentralized P2P tech btw.
  - colejohnson66 6y ago
    From the takedown request: > Moreover, the Project in question hosts software that is distributed and used to infringe on the MPA Member Studios’ copyrights. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 940 n.13 (2005) (‘the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe’) I agree though, they went around the courts with a DMCA takedown, and should’ve sued. https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,....
    - henriquez 6y ago
      The fact that the software could be used for infringement is irrelevant because the software itself is not infringing (someone else brought up web browsers as another example of this). The MPAA are legally savvy enough to know this was an abuse of process. If any DMCA reforms are needed, top of my list would be removing takedown privileges from copyright holders that abuse it.
      - YetAnotherNick 6y ago
        I wonder if you had say said same with a website that does not ban child porn or somehow encouraged paedophilia or let users discuss black lynching in public forum. I know they are extreme examples but sometimes the blanket statement like 'software itself is not infringing' should be used with more caution. In popcorn time's I support it to be back but this does not mean I support fully uncensored net.
        cecja 6y ago
        It's the same, chrome and Firefox are actively used to view childporn on the tor network your argument is NULL or we can't use anything anymore.
        jdsully 6y ago
        If laws are regularly abused for extraneous purposes then we no longer live in a society with rule of law. Armed gangs are replaced by teams of lawyers but the effect is the same. There may be value in taking down tools used to aid copyright but if that is a desired outcome congress should pass a law permitting it.
henriquez 6y ago
It’s true, this was never a valid DMCA complaint in the first place. The fact that a company with the resources of Microsoft went along with it unquestioningly shows exactly what we can expect from their “benevolent stewardship” of all the developer resources they’ve recently acquired. I’ve already started moving my projects off of Github and will no longer use it outside of an employment context.
bawolff 6y ago
I agree, the original take down request was inappropriate (although i've heard of much worse abuses). I think everything after that point though was pretty standard, and in particular github's behaviour in all this wss very standard.

colejohnson66 6y ago

I don’t agree with what the MPAA did, but they didn’t claim the code was infringing on their rights. They claimed the code facilitated infringement, which is also not allowed under the DMCA.

henriquez 6y ago
It’s _arguably_ not allowed by the DMCA, but outside the scope of the notice-and-takedown provisions which only provide for takedown of specific infringing works. Statutory infringements outside of that very narrow scope would require a traditional lawsuit with actual court oversight. MPAA is not stupid and they knowingly abused the process in this case because they wanted to put Microsoft in a tight situation and gauge their response. Of course it went exactly as planned with Microsoft rolling over like every other tech company that won’t stand up for its users’ rights. This is _exactly_ why we need decentralized P2P tech btw.
- colejohnson66 6y ago
  From the takedown request: > Moreover, the Project in question hosts software that is distributed and used to infringe on the MPA Member Studios’ copyrights. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 940 n.13 (2005) (‘the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe’) I agree though, they went around the courts with a DMCA takedown, and should’ve sued. https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd https://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,....
  - henriquez 6y ago
    The fact that the software could be used for infringement is irrelevant because the software itself is not infringing (someone else brought up web browsers as another example of this). The MPAA are legally savvy enough to know this was an abuse of process. If any DMCA reforms are needed, top of my list would be removing takedown privileges from copyright holders that abuse it.
    - YetAnotherNick 6y ago
      I wonder if you had say said same with a website that does not ban child porn or somehow encouraged paedophilia or let users discuss black lynching in public forum. I know they are extreme examples but sometimes the blanket statement like 'software itself is not infringing' should be used with more caution. In popcorn time's I support it to be back but this does not mean I support fully uncensored net.
      - cecja 6y ago
        It's the same, chrome and Firefox are actively used to view childporn on the tor network your argument is NULL or we can't use anything anymore.
      - jdsully 6y ago
        If laws are regularly abused for extraneous purposes then we no longer live in a society with rule of law. Armed gangs are replaced by teams of lawyers but the effect is the same. There may be value in taking down tools used to aid copyright but if that is a desired outcome congress should pass a law permitting it.

henriquez 6y ago

It’s true, this was never a valid DMCA complaint in the first place. The fact that a company with the resources of Microsoft went along with it unquestioningly shows exactly what we can expect from their “benevolent stewardship” of all the developer resources they’ve recently acquired. I’ve already started moving my projects off of Github and will no longer use it outside of an employment context.

bawolff 6y ago

I agree, the original take down request was inappropriate (although i've heard of much worse abuses). I think everything after that point though was pretty standard, and in particular github's behaviour in all this wss very standard.