4 ms·

Oddly, this DMCA report is a straightforward (though harmless) example of perjury, since one literally cannot infringe one's own copyright, and the report alleg

Oddly, this DMCA report is a straightforward (though harmless) example of perjury, since one literally cannot infringe one's own copyright, and the report alleges a self-infringement of copyright under penalty of perjury as required by the statutory DMCA regime. Being therefore self-evidently invalid without needing external information beyond its text, the notice certainly doesn't impose any takedown obligation stemming from the DMCA even if GitHub wants to stay within the DMCA safe harbor. GitHub can, of course, still choose to respond to the perjurious invalid notice by voluntarily destroying the repository as requested. That seems like the right thing to do in this case, so I hope they do it.

whatshisface 5y ago
I wonder if even a single entity has been convicted for perjury in the history of the DCMA.
- dannyw 5y ago
  I have not been able to find a single example of prosecution of perjury relating to DMCA.
jerf 5y ago
I believe the complaint is that Github is violating the copyright by leaving it public, not that the submitter is infringing against the submitter. Though in this case there is the problem that when you push to GitHub you give them a license to provide it, and my first-pass skim doesn't show that you have arbitrary abilities to revoke it: https://docs.github.com/en/github/site-policy/github-terms-of-service#l-cancellation-and-termination https://docs.github.com/en/github/site-policy/github-terms-o... You can revoke most of the rights by closing your account, but in this case that would be begging the question. That said, I'd agree it's the right thing to do, except they should make some direct effort to double-check the ownership so that people can't just arbitrarily claim to own things like this and take them down.
devmor 5y ago
I wonder if github continuing to host the code despite his wishes for it to be removed would constitute a violation of DMCA?
deleted 5y ago
[deleted]
Dylan16807 5y ago
The perjury clause only applies to the claim that you're authorized to act on the copyright.
- jkaplowitz 5y ago
  No, it applies to the claim that you are authorized to act on an exclusive right that has been allegedly infringed. If the claim of infringement is so laughable that it cannot be or is not being alleged in good faith - as opposed to a good-faith but legally incorrect allegation of infringement - then there is no exclusive right allegedly being infringed, and the claim of authority is false. I am pretty sure that the claimant didn't really believe he was violating his rights. Though I guess one could argue that a bad-faith allegation of infringement still truly and honestly counts as an allegation of infringement, so maybe it's not so straightforward as perjury...
  - Dylan16807 5y ago
    You interpretation seems a big reach to me. The rights being (not) infringed are reproduction and distribution. Even if we go with "no rights are allegedly being infringed", a claim of "I am authorized for all 0 of these things" isn't actually a false statement.
    - jkaplowitz 5y ago
      The wording of the statutory claim asserts the existence of "an exclusive right that is allegedly infringed", which means that the claimant is asserting that there is at least one such right that is allegedly being infringed. It's clear that there is at least one exclusive right in existence for this work without regard to the question of alleged infringement, so the only question is whether infringement of the right is truly being alleged. I accept that it's possible to interpret that last question either way in the case of someone asserting a self-infringement while probably knowing that self-infringement can't exist, since the interpretation will depend on whether a bad-faith known-meritless allegation still counts as an allegation for this purpose, and I guess also on whether the person knows the terminology enough to know that what they're claiming is false. In any case, there are many reasons why this is not the kind of perjury claim that any prosecutor would ever bring to court, so we'll probably never get a ruling on it.
akersten 5y ago
> Being therefore self-evidently invalid without needing external information beyond its text, the notice certainly doesn't impose any takedown obligation stemming from the DMCA even if GitHub wants to stay within the DMCA safe harbor. Companies that accept DMCA notices have made it plain as day that they have no interest in determining the merits of any particular DMCA notice on their own. Why bother taking the risk of ignoring a valid notice when there is no upside to declining an invalid one? The courts have also made it clear that they implicitly endorse invalid notices as a matter of course. I don't think any copyright-troll-as-a-service has ever been held accountable for rampant abuse of the system. In short, the material of the notice doesn't matter. The DMCA is a "how to delete someone else's post" button that requires no collateral from the attacker and the insurmountable lift of dragging oneself into an actual legal process for the victim to fight back.
cormacrelf 5y ago
Haha, perjury. A straightforward and somehow also mostly harmless case of it too! This take is off the rails. They did not lie on the notice. Mistakes of law aren’t perjury in any case. Mistakes of any kind are not perjury! The word perjury in the declaration doesn’t make every slip-up an imprisonable offence. People should be wary of using the term perjury without knowing what it means, because you will get laughed at. The only thing that would prevent GitHub from having to take it down is its terms of service. If you accept that this person and their alt account are the same person, then as GitHub does not contract with @usernames but actual people, they gave GitHub a license to publish it on the web, revocable by actions by the controller of the alt account. Or however the terms of service lay this out. I don’t think you need DMCA to get this done, you can probably just show you are the account holder and revoke the license via email. DMCA takedown obviously implies this and has a process already.
- jkaplowitz 5y ago
  A mistake would not be perjury, fully agreed, and I do know what the word means. Knowingly making a materially false declaration under penalty of perjury in a circumstance where a federal law specifies that penalty, however, would be perjury. So, the main question here is whether it's knowingly and materially false of the claimant to assert that they are the owner of an exclusive right that was allegedly infringed. They clearly own an exclusive right with respect to the work, so the question reduces to whether it's knowingly and materially false that the exclusive right was allegedly infringed. If a known bad-faith/inaccurate allegation suffices to make the exclusive right allegedly infringed, then the statement is true and there was no perjury. I'm doubtful that a court would rule that way, but it is possible. Otherwise, the question of perjury finally boils down to whether the claimant understands that no right was being infringed, and I guess also to whether the knowing falsity of the resulting allegation was material according to the standards of the perjury statute. My guess is yes to both questions, hence calling it perjury. I think the notice sender had simply given up on more appropriate ways to get the stuff taken down and was trying any procedure, however ill-matched, to achieve the goal. But equally, I agree that some of this might be hard to prove and definitely that none of it is worth the time of a prosecutor or court. It's a purely academic discussion. DMCA takedowns do not in general imply any revocation of a license, by the way. If the takedown notice is contrary to the scope of a current and valid license, then either GitHub can realize that fact and choose to step outside the liability protections of the safe harbor for that notice and decline to act on the notice, or the target of the notice (usually not the same person as the one who issued it) can give a counter-notification and eventually have their hosting restored in the absence of a lawsuit during the resulting statutory waiting period.

whatshisface 5y ago

I wonder if even a single entity has been convicted for perjury in the history of the DCMA.

dannyw 5y ago
I have not been able to find a single example of prosecution of perjury relating to DMCA.

jerf 5y ago

I believe the complaint is that Github is violating the copyright by leaving it public, not that the submitter is infringing against the submitter. Though in this case there is the problem that when you push to GitHub you give them a license to provide it, and my first-pass skim doesn't show that you have arbitrary abilities to revoke it: https://docs.github.com/en/github/site-policy/github-terms-of-service#l-cancellation-and-termination https://docs.github.com/en/github/site-policy/github-terms-o... You can revoke most of the rights by closing your account, but in this case that would be begging the question. That said, I'd agree it's the right thing to do, except they should make some direct effort to double-check the ownership so that people can't just arbitrarily claim to own things like this and take them down.

devmor 5y ago

I wonder if github continuing to host the code despite his wishes for it to be removed would constitute a violation of DMCA?

deleted 5y ago

[deleted]

Dylan16807 5y ago

The perjury clause only applies to the claim that you're authorized to act on the copyright.

jkaplowitz 5y ago
No, it applies to the claim that you are authorized to act on an exclusive right that has been allegedly infringed. If the claim of infringement is so laughable that it cannot be or is not being alleged in good faith - as opposed to a good-faith but legally incorrect allegation of infringement - then there is no exclusive right allegedly being infringed, and the claim of authority is false. I am pretty sure that the claimant didn't really believe he was violating his rights. Though I guess one could argue that a bad-faith allegation of infringement still truly and honestly counts as an allegation of infringement, so maybe it's not so straightforward as perjury...
- Dylan16807 5y ago
  You interpretation seems a big reach to me. The rights being (not) infringed are reproduction and distribution. Even if we go with "no rights are allegedly being infringed", a claim of "I am authorized for all 0 of these things" isn't actually a false statement.
  - jkaplowitz 5y ago
    The wording of the statutory claim asserts the existence of "an exclusive right that is allegedly infringed", which means that the claimant is asserting that there is at least one such right that is allegedly being infringed. It's clear that there is at least one exclusive right in existence for this work without regard to the question of alleged infringement, so the only question is whether infringement of the right is truly being alleged. I accept that it's possible to interpret that last question either way in the case of someone asserting a self-infringement while probably knowing that self-infringement can't exist, since the interpretation will depend on whether a bad-faith known-meritless allegation still counts as an allegation for this purpose, and I guess also on whether the person knows the terminology enough to know that what they're claiming is false. In any case, there are many reasons why this is not the kind of perjury claim that any prosecutor would ever bring to court, so we'll probably never get a ruling on it.

akersten 5y ago

> Being therefore self-evidently invalid without needing external information beyond its text, the notice certainly doesn't impose any takedown obligation stemming from the DMCA even if GitHub wants to stay within the DMCA safe harbor. Companies that accept DMCA notices have made it plain as day that they have no interest in determining the merits of any particular DMCA notice on their own. Why bother taking the risk of ignoring a valid notice when there is no upside to declining an invalid one? The courts have also made it clear that they implicitly endorse invalid notices as a matter of course. I don't think any copyright-troll-as-a-service has ever been held accountable for rampant abuse of the system. In short, the material of the notice doesn't matter. The DMCA is a "how to delete someone else's post" button that requires no collateral from the attacker and the insurmountable lift of dragging oneself into an actual legal process for the victim to fight back.

cormacrelf 5y ago

Haha, perjury. A straightforward and somehow also mostly harmless case of it too! This take is off the rails. They did not lie on the notice. Mistakes of law aren’t perjury in any case. Mistakes of any kind are not perjury! The word perjury in the declaration doesn’t make every slip-up an imprisonable offence. People should be wary of using the term perjury without knowing what it means, because you will get laughed at. The only thing that would prevent GitHub from having to take it down is its terms of service. If you accept that this person and their alt account are the same person, then as GitHub does not contract with @usernames but actual people, they gave GitHub a license to publish it on the web, revocable by actions by the controller of the alt account. Or however the terms of service lay this out. I don’t think you need DMCA to get this done, you can probably just show you are the account holder and revoke the license via email. DMCA takedown obviously implies this and has a process already.

jkaplowitz 5y ago
A mistake would not be perjury, fully agreed, and I do know what the word means. Knowingly making a materially false declaration under penalty of perjury in a circumstance where a federal law specifies that penalty, however, would be perjury. So, the main question here is whether it's knowingly and materially false of the claimant to assert that they are the owner of an exclusive right that was allegedly infringed. They clearly own an exclusive right with respect to the work, so the question reduces to whether it's knowingly and materially false that the exclusive right was allegedly infringed. If a known bad-faith/inaccurate allegation suffices to make the exclusive right allegedly infringed, then the statement is true and there was no perjury. I'm doubtful that a court would rule that way, but it is possible. Otherwise, the question of perjury finally boils down to whether the claimant understands that no right was being infringed, and I guess also to whether the knowing falsity of the resulting allegation was material according to the standards of the perjury statute. My guess is yes to both questions, hence calling it perjury. I think the notice sender had simply given up on more appropriate ways to get the stuff taken down and was trying any procedure, however ill-matched, to achieve the goal. But equally, I agree that some of this might be hard to prove and definitely that none of it is worth the time of a prosecutor or court. It's a purely academic discussion. DMCA takedowns do not in general imply any revocation of a license, by the way. If the takedown notice is contrary to the scope of a current and valid license, then either GitHub can realize that fact and choose to step outside the liability protections of the safe harbor for that notice and decline to act on the notice, or the target of the notice (usually not the same person as the one who issued it) can give a counter-notification and eventually have their hosting restored in the absence of a lawsuit during the resulting statutory waiting period.