3 ms·

The damages are going to be very small (basically just costs in responding to the notice), but section 512 f of the dmca does provide a route to sue Any person

by gpm 6y ago

The damages are going to be very small (basically just costs in responding to the notice), but section 512 f of the dmca does provide a route to sue Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

ikeboy 6y ago
This isn't a 512 notice, so you can't sue under that. My guess is you can't get any damages because the letter is quite careful in its claims and no judge is going to find that it's in bad faith.
- 4436f1e5966ffd 6y ago
  This github comment points out that the RIAA letter seems to be deliberately breaking form to not mention “fair use”. I don’t know if that qualifies as “bad faith” but it seems disregarding fair use means this wasn’t made in good faith. https://github.com/github/dmca/pull/8124#issuecomment-715625409 https://github.com/github/dmca/pull/8124#issuecomment-715625...
  - gamblor956 6y ago
    Fair use is a defense to copyright infringement. It is the defendant's job to show that what they're doing is fair use.
  - dredmorbius 6y ago
    No, not mentioning Fair Use is ... pretty standard. Dressing up a secondary-infringement-if-that plus third-party-maybe-anticirc claims in §512 dress has at the least a bad smell about it. (Author.)
    - dredmorbius 6y ago
      ... and realising I missed your point in this reply, see 2nd response.
  - dredmorbius 6y ago
    Interesting as the linked guidelines specify a separate procedure for §1201 claims, specifically requesting "what technological measures you had in place", which would seem to preclude §1201 claims on behalf of an unaffiliated third party (YouTube, vs. RIAA). https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-takedown-notice https://docs.github.com/en/free-pro-team@latest/github/site-...
    - gamblor956 6y ago
      The law does not place that limitation on filing 1201 claims. Also, the RIAA is not an unaffiliated party. They act as the collective legal representative on behalf of their members (i.e., the recording studios). The alternative is that youtube-dl (and others) could face multiple lawsuits, one from each music company, instead of just one, and each company could test a different legal argument. The music labels can afford this. In fact, in many situations they would prefer it.
      - dredmorbius 6y ago
        The "copyright protection scheme" in question, if it even is one, was written by and is provided by Google/Youtube, not the RIAA. It is not even clear to me the RIAA has standing to sue under §1203: "Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation." RIAA are not injured due to utilisation of a non-member's mechanism. The claim does not pass the 17 USC 1201 (a)(2)(B) test: that the technology "has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title". Yes, Github (or its owner, Microsoft Corp.) may have liability under 17 USC 1201 (a)(2), "offer to the public, provide, or otherwise traffic" the code, subject to the same test above. However there is no safe-harbour provision for such violations. Microsoft is listed on the RIAA's members page. Neither Google LLC, its Youtube subsidiary, nor parent Alphabet Inc. are. The RIAA are threatening a member for a §1201 violation against a nonmember. That's ... weird. From TFA.
        6y ago
- dredmorbius 6y ago
  https://news.ycombinator.com/item?id=24893533 https://news.ycombinator.com/item?id=24893533
- kelnos 6y ago
  The article we're talking about is arguing that the RIAA shouldn't be using a DMCA 512 notice, but it seems that the are (incorrectly) using a 512 notice, or at least GitHub has interpreted their request as such.

by gpm 6y ago

ikeboy 6y ago

This isn't a 512 notice, so you can't sue under that. My guess is you can't get any damages because the letter is quite careful in its claims and no judge is going to find that it's in bad faith.

4436f1e5966ffd 6y ago
This github comment points out that the RIAA letter seems to be deliberately breaking form to not mention “fair use”. I don’t know if that qualifies as “bad faith” but it seems disregarding fair use means this wasn’t made in good faith. https://github.com/github/dmca/pull/8124#issuecomment-715625409 https://github.com/github/dmca/pull/8124#issuecomment-715625...
- gamblor956 6y ago
  Fair use is a defense to copyright infringement. It is the defendant's job to show that what they're doing is fair use.
- dredmorbius 6y ago
  No, not mentioning Fair Use is ... pretty standard. Dressing up a secondary-infringement-if-that plus third-party-maybe-anticirc claims in §512 dress has at the least a bad smell about it. (Author.)
  - dredmorbius 6y ago
    ... and realising I missed your point in this reply, see 2nd response.
- dredmorbius 6y ago
  Interesting as the linked guidelines specify a separate procedure for §1201 claims, specifically requesting "what technological measures you had in place", which would seem to preclude §1201 claims on behalf of an unaffiliated third party (YouTube, vs. RIAA). https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-takedown-notice https://docs.github.com/en/free-pro-team@latest/github/site-...
  - gamblor956 6y ago
    The law does not place that limitation on filing 1201 claims. Also, the RIAA is not an unaffiliated party. They act as the collective legal representative on behalf of their members (i.e., the recording studios). The alternative is that youtube-dl (and others) could face multiple lawsuits, one from each music company, instead of just one, and each company could test a different legal argument. The music labels can afford this. In fact, in many situations they would prefer it.
    - dredmorbius 6y ago
      The "copyright protection scheme" in question, if it even is one, was written by and is provided by Google/Youtube, not the RIAA. It is not even clear to me the RIAA has standing to sue under §1203: "Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation." RIAA are not injured due to utilisation of a non-member's mechanism. The claim does not pass the 17 USC 1201 (a)(2)(B) test: that the technology "has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title". Yes, Github (or its owner, Microsoft Corp.) may have liability under 17 USC 1201 (a)(2), "offer to the public, provide, or otherwise traffic" the code, subject to the same test above. However there is no safe-harbour provision for such violations. Microsoft is listed on the RIAA's members page. Neither Google LLC, its Youtube subsidiary, nor parent Alphabet Inc. are. The RIAA are threatening a member for a §1201 violation against a nonmember. That's ... weird. From TFA.
      - 6y ago
dredmorbius 6y ago
https://news.ycombinator.com/item?id=24893533 https://news.ycombinator.com/item?id=24893533
kelnos 6y ago
The article we're talking about is arguing that the RIAA shouldn't be using a DMCA 512 notice, but it seems that the are (incorrectly) using a 512 notice, or at least GitHub has interpreted their request as such.