5 ms·

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 go

by 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.
      - gamblor956 6y ago
        You can cite TFA all you want. I disagree with his legal analysis, as do most lawyers. His first paragraph is wrong. It's irrelevant who imposes the copyright protection scheme, only that one exists. And speaking as someone who has entered into an RIAA licensing agreement in the past, our license agreement with the RIAA did require us to put into place measures to prevent copying of licensed RIAA content, and I assume that Gootube has the same terms in their license. The next conclusion is also wrong, since the RIAA is the authorized legal representative for its members, and prior cases have already established that they can act in this capacity. His conclusion on the (a)(2)(B) test is not correct either. The sole purpose of youtube-dl is to download content from websites which do not make their content available for download through standard means of access. In fact, the whole point of using youtube-dl is that they constantly update the code to get around the changes that websites make so that content can't be downloaded. I would bet a lot of money that this will be the deciding factor if this goes to trial. 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. I'm not sure why techies keep bringing this up like it means something. It's irrelevant that they are a member of the RIAA. Microsoft is receiving the takedown request because they are/were hosting the youtube-dl code through their subsidiary Github and legal procedure requires the notice to be sent to them. MS is not the subject of a DMCA infringement lawsuit. Repeat: Microsoft is not the subject of a DMCA infringement lawsuit. By taking down the youtube-dl repository, MS's involvement in this matter ended. Youtube-DL would be the target of the DMCA infringement lawsuit by the RIAA. If they keep working on youtube-dl from this point on, it's very likely the RIAA will file a lawsuit against the maintainers/programmers.
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 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.
    - gamblor956 6y ago
      You can cite TFA all you want. I disagree with his legal analysis, as do most lawyers. His first paragraph is wrong. It's irrelevant who imposes the copyright protection scheme, only that one exists. And speaking as someone who has entered into an RIAA licensing agreement in the past, our license agreement with the RIAA did require us to put into place measures to prevent copying of licensed RIAA content, and I assume that Gootube has the same terms in their license. The next conclusion is also wrong, since the RIAA is the authorized legal representative for its members, and prior cases have already established that they can act in this capacity. His conclusion on the (a)(2)(B) test is not correct either. The sole purpose of youtube-dl is to download content from websites which do not make their content available for download through standard means of access. In fact, the whole point of using youtube-dl is that they constantly update the code to get around the changes that websites make so that content can't be downloaded. I would bet a lot of money that this will be the deciding factor if this goes to trial. 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. I'm not sure why techies keep bringing this up like it means something. It's irrelevant that they are a member of the RIAA. Microsoft is receiving the takedown request because they are/were hosting the youtube-dl code through their subsidiary Github and legal procedure requires the notice to be sent to them. MS is not the subject of a DMCA infringement lawsuit. Repeat: Microsoft is not the subject of a DMCA infringement lawsuit. By taking down the youtube-dl repository, MS's involvement in this matter ended. Youtube-DL would be the target of the DMCA infringement lawsuit by the RIAA. If they keep working on youtube-dl from this point on, it's very likely the RIAA will file a lawsuit against the maintainers/programmers.

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.