I’m generally skeptical of these claims as the legal system typically doesn’t look super fondly on technically-correct “I’m not touching you” arguments. So has this been litigated sufficiently to state this with such conviction? I’m not sufficiently familiar to know.
They may have other legal claims against PopcornTime for facilitating piracy on whatever basis, but I sincerely doubt they actually own any of the copyrights to the code itself, which is ostensibly what they claim when filing a DMCA claim. But hosts generally respond even to defective DMCA notices, so they've learned just to demand takedowns first and sort anything else out after the fact. There's no reason to expend any effort if they can get what they want with a simple letter and that's something I've learned holds true across most legal endeavors. It seems like a lawyer's first action is almost always to draft a letter demanding whatever they want on whatever basis, oftentimes getting results for a single, rather expensive piece of legal letterhead.
There isn't some magical gray zone where someone can feel like something should be illegal and therefore the actions of someone else are illegal.
[0]: https://www.amazon.ca/dp/B07Z1V1LBQ?tag=duc12-20&linkCode=os...
Also, I am pretty sure that the person(s) behind popcorn have a copy of their code somewhere else (or at least they sync/backup to their machines every so often.
So they will be fine. I think that this is just a tap on the back so they know that someone is NOW actively chasing them.
It’s just that the studios have been forced by the pandemic to concentrate exclusively on online channels. See for example the latest Trolls movie, which just made $100m in his first week on streaming: that’s considered fantastic (and possibly a turning point) but it’s still half of what the previous movie made with a classic release in theatres a few years ago. Most “tentpole” releases are on hold and they have to keep pumping ads to keep the hype up. Cashflow must be fairly tight.
So the studios right now need all the help they can get, in order to squeeze money out of digital channels. Taking “off the board” alternatives like PopcornTime, even if just for the 2 weeks DMCA forces ISPs to obey, increases their chances. I would expect they’re ready to repeat the trick a few times from a few different entities, at least until the pandemic is over and people can go back to real (overpriced) popcorn.
Next up: Mandatory Registration and "licensing" for locksmiths. Because that becomes necessary if we start going down the path of legislating lock picking tools.
Take parking. You can only park Between 9-4 on weekend in the summer on the left side of this street only if you are not in front of a fire hydrate or a drive way. That's before you take into consideration hidden signs because of tree growth forbiding parking.
People fight tickets all of the time because of complex or gray situations.
The legislative branch makes laws.
The judicial branch interprets and applies those laws.
It's possible for reasonable people to read law and disagree about what is or isn't allowed, which is why case law is a thing.
https://superuser.com/questions/617264/difference-between-bi...
It is a straightforward I own foo. Using it to take down a tool that helps people access foo is perjury. It's just that we will actually jail people for committing the kind of crimes poor people commit but we refuse to prosecute the crimes rich people commit.
It's entirely possible that in the scope of another legal action the parties behind popcorn time might lose out THAT unlike this is the actually complex question.
This is pretty straightforward. You can only take down popcorn time if you can claim to own it thus its just the kind of crime we allow rich people to perpetrate upon poor people.
In the US, the DMCA makes a criminal offense to circumvent access control.
As with many matters, the law isn't necessarily black and white (coincidentally, today was the first time the SCOTUS heard a arguments via teleconference--that audio was streamed live, and the subject was whether or not the PTO could block a trademark on Booking.com), and it would be up to challenge in court.
I suspect that whether an open source repository that allows anyone with technical know-how to build software to partake in copyright infringement--is subject to DMCA, would be a matter for the courts to decide.
I could see one argument--plans to create a 3d printed gun are controlled, and a federal court has ruled those plans cannot be put online.
Correct. However:
1) The DMCA takedown process only applies to direct copyright violations, not to circumvention tools. Part of a properly formed takedown request is an affadavit that the content infringes upon the requester's copyright; the request in the OP is technically deficient, and GitHub made an error by honoring it.
2) PopcornTime is not a circumvention tool. It does not itself bypass any forms of rights protection; it merely distributes content (which might have been obtained through the use of circumvention tools, but that's besides the point).
Not according to this:
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”).
Hence, my point that it's an argument for the courts.
There is perhaps no argument that PopcornTime is committing contributory copyright infringement. The point is you can’t use DMCA Takedown Notices on the source code of a contributory tool.
The form that must be completed as part of a takedown notice does not have a box for “this is a tool which contributes to infringing my copyright”. The box you must check is “this is my copyrighted work and I don’t want it posted at this address”.
I'm 100% sure that you are guessing, and that the post you replied to is directly quoting the takedown notice.
See: https://github.com/github/dmca/blob/master/2020/05/2020-05-0...
Addressing the content of the quote more directly, Grokster established that companies marketing file sharing applications have liability for infringement conducted by users. It did not establish that the companies' service providers can be sent DMCA notices, as that wasn't at issue. So that particular case doesn't help your point.
the first is arguing the letter of the law makes the law, and that as this situation does not conform to the letter then the notice is invalid.
the second is arguing that, in the American system, it is actually the interpretation that makes the law, hence it will have to be determined by the courts whether the notice is actually invalid.
This second argument implies some things:
Until such a time as the notice can be voided it is valid, because a valid notice is one that can shut something down as this one has done. There is no such thing as invalidity without court interpretation if you can send a notice and have it always treated as valid until the interpretation is made.
The notice is in force, and there is nothing more valid than force in the American system. Perhaps in any real world system.
I might like to live in a world in which argument number 1 was correct, but I'm pretty sure I live in a world which argument number two more closely models.
I also think the courts will in the end interpret #2 as correct, for the reasons that #1 outlined, that the sending of the notice is a crime that the rich are allowed to commit on the poor.
I think in the end both posters and myself share an equal cynicism about American Law, but display our cynicism in different ways.
Plus, GitHub apparently rejected the first version of this notice that was sent back in March, and only acted upon this amended version. So they clearly feel that it is within their power to decide what is or isn't a valid notice without needing a court to rule on the matter to make it certain and official.
the valid until ruled otherwise theory of things is of that spirit which animates such sayings as "Political power grows out of the barrel of a gun"
I suppose I am not that aware of all the provisions available to anyone wanting to ignore a DMCA, but I was under the impression they were not that great given that everyone is always complaining that you ignore a DMCA at your own peril.
Why are you talking about orders? DMCA takedown notices aren't orders.
Let me rephrase the first paragraph then -
anyone can ignore anything anytime for any reason whatsoever but in some cases that can lead to a bad outcome for the person doing the ignoring.
- note: I realize github is not a person, but I will use person in my example nonetheless.
The implication of the above is that sometimes people do not ignore things they could because they fear a bad outcome.
In the example using orders and shot, by making anything an order which is very strict, and bad outcome shot which is very bad indeed it should generally have the rhetorical effect of making the implication that ignoring the thing under discussion is more risky than otherwise and so a wise or cowardly person (take your pick) may choose not to ignore it.
In the US, this was contemplated by the founders when they setup three distinct branches of government.
Laws are written by humans, and may be prone to error, omission, corner cases, loopholes, and/or contradictions.
The court system seeks to not necessarily interpret the law, but apply it, only interpreting it as needed.
There are landmark cases that are considered "settled law" such as Roe v Wade that limited governments ability to prohibit abortions, or Brown v Board of Education which ended states segregation.
Compound that the body of law is living, changing as society does (the DMCA had no real need prior to the expansion of the internet), and it's clear there is a need for a branch to continue to apply the law.
The downside is we have a specific issue which really comes down to:
1) Is this specific use of DMCA takedone abuse
2) If this is abuse, is this indicative of a problem with DMCA takedown notices
3) What relief should be made provided
As you stated, my position is that this is not something to be litigated in comments on HN, as there is no clear answer as stated in the law as written.
Sure it did. Those are the same thing under Section 512(c)(3)(A)(iii):
>Identification of the material that is claimed to be infringing or to be the subject of infringing activity
The js files are the subject of infringing activity. Popcorn Time is "inducing infringement" as stated in the unanimous SCOTUS ruling against grokster.
https://www.copyright.gov/docs/mgm/opinion.pdf
https://www.copyright.gov/legislation/dmca.pdf
https://www.law.cornell.edu/uscode/text/17/512
Popcorn Time is toast.
This only comes close to making sense if you are assuming an unreasonably vague definition of "infringing activity".
Copyright is defined in terms of actions that the author/owner has exclusive right to: reproduce, distribute, perform or display publicly, etc. Infringement is defined as doing one of those actions without permission. An infringing activity is reproducing, distributing, etc. something you don't have permission to reproduce or distribute. The subject of an infringing action is the thing being reproduced, distributed, etc.
The MPA's complaint identified JS code as the subject of infringing action, meaning at most that it's the creation or public display and distribution of the JS code at those URLs that the MPA is alleging to infringe their copyright in movies. This does not seem to have been understood by the author of the more rambling, irrelevant portions of that complaint. In order for that JS code's existence or display to be infringing on the copyright of the movies, it would have to be a derivative work of each of those movies—an indeterminate but large number of movies, for what was probably just a few kB of code. That's not the kind of accusation anyone is going to take seriously.
https://github.com/github/dmca/blob/master/2020/05/2020-05-0...
My interpretation was whomever filed the takedown notice contemplated your argument and proactively stated (paraphrased) "Based on case law, you can be held liable simply by distributing a product, if that product is clearly used to violate copyright law".
The notice also referenced Githubs terms of service which prohibit using a github repos for copyright infringement.
Is hosting a source code repo "distribution" of a product?
Did whomever filed the DMCA, not have a valid basis for doing so (the argument in this thread)?
By showing thumbnails of pirated movies a copyright violation?
By loading content from "pirated sites" facilitate copyright violations?
My pov is the answers to those questions are not simple, and thus would need legal clarification.
In the interim, Github seems to be picking a side of minimizing liability.
As well, DMCA takedown notices are only supposed to act to take down the relevant content, in the case where the recipient of the notice (i.e. the user of the hosting provider) doesn't respond/contest the notice. The spirit of this is that the takedown notice is only supposed to apply where there is no doubt, no argument, around the copyright-infringing status of the work. If anyone has doubts—the user receiving the claim, the hosting provider themselves, etc.—then legal due process is required, rather than summary judgement.
Are companies required to adhere to a DMCA notice, or is that just policy to avoid litigation?
PDF Source on Safe Harbor provisions for OSP's: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&c...
By law, if a service provider doesn’t know that material they’re hosting on behalf of someone else is infringing, then they’re not liable for any copyright violations in that content. The notice process exists to inform them of that fact, and if they continue to host the material, they’re then liable for it.
The law also protects the provider from complaints by the original uploader about taking down content pursuant to a DMCA notice; that’s the counter-notices you’ll sometimes hear people mentioning.
Overall, the law is intended to let service providers stay clear of copyright disputes that involve their customers.
There's a separate bit that protects providers who take things down that are obviously infringing, even if nobody filed a takedown notice. But that safe harbor provision doesn't apply in cases where the provider botched their handling of the takedown notice procedure.
> As well, DMCA takedown notices are only supposed to act to take down the relevant content, in the case where the recipient of the notice (i.e. the user of the hosting provider) doesn't respond/contest the notice.
Actually, according to the text of the DMCA [1], a provider is supposed to first "inform[] that person that it will replace the removed material or cease disabling access to it in 10 business days", then "replace[] the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice".
They have to keep the content down for two full weeks after receiving the counter-notice. Yes, this is blatantly unfair. But that's how it is.
In practice, providers sometimes restore access sooner, but they're forfeiting the safe harbor by doing so.
> DMCA takedown notices are a sort of pre-trial motion, used only for a very specific "obvious" kind of infringement, to take it down in advance of suit.
I'm not sure whether the question of whether contributory infringement can be the subject of a DMCA notice has ever been tested in court. If you know, feel free to enlighten me. But I doubt it has, since the issue would only come up in a 512(f) lawsuit accusing someone of a fraudulent takedown, and that clause has barely ever been used at all.
From the text of the DMCA, though, a DMCA notice is supposed to contain, among other things (emphasis added):
> (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. > (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.
"An exclusive right that is allegedly infringed" is broad wording. And point 3 anticipates that the "material" might not be "infringing" but merely "the subject of infringing activity"; it's not clear to me what exactly the difference is, but this also suggests a broad scope of what kind of "activity" might be covered.
Admittedly, that's fairly weak textual evidence. But I don't see any language supporting the opposite position. At minimum the law is ambiguous. So unless it's been tested in court, I don't see how you can claim that DMCA notices are "used only for a very specific 'obvious' kind of infringement".
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.
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.
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.
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.
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.”
If that’s the case, then a notice based on a theory of contributory infringement should be legitimate. If it isn’t, service providers are potentially liable for contributory infringement of which they were not aware, and will thus need to preemtively evaluate content they are hosting to detect that situation.
> Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
( https://www.law.cornell.edu/uscode/text/17/501 )
At least one of the following exclusive rights have to be violated:
> (1) to reproduce the copyrighted work in copies or phonorecords;
> (2) to prepare derivative works based upon the copyrighted work;
> (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
> (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
> (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
> (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
( https://www.law.cornell.edu/uscode/text/17/106 )
Contributory infringement isn't listed.
The Supreme Court held in the Grokster case:
>[...] One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it. Although “[t]he Copyright Act does not expressly render anyone liable for [another’s] infringement,” Sony, 464 U.S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law
( https://www.law.cornell.edu/supct/html/04-480.ZS.html )
So I don't think it is justified to say that contributory infringement is covered by the statutory DMCA takedown notice procedure, and if it is justified, the source would be a court precedent from the past 15 years which we haven't found yet.
Back to the question of the validity of this particular DMCA takedown notice: None of the works or actions found at the GitHub URLs in the complaint were movies. Nobody was performing a movie at the GitHub URL for a JS source code file. None of those files were a reproduction of a movie, in whole or in part. The only action happening at those particular URLs was public display and distribution of files, and the thing being publicly displayed at each of those URLs was JS source code, which is not a match for the works that the studios claimed ownership of. This DMCA complaint does not provide "information reasonably sufficient to permit" GitHub to find movie piracy on GitHub, unless the studio wants to claim that the source code is a rip-off inspired by something out of a movie. But if that were the case, they could have been a lot more specific about which movie.
GitHub is probably safe regardless. But the studios will only win a lawsuit by making a substantially different claim from the claim that the JS code is infringing on multiple movies.
The whole clause reads "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."
The material that the claimant alleges is in violation of copyright law is clearly identified in a way that allows GitHub to locate it. The theory under which it is in violation may be dubious, but it's not GitHub's responsibility to evaluate whether this claim has any merit -- that's the court's job.
Two asides: iTunes is a contributory infringer in the UK as format shifting is not allowed here.
A similar situation to that you describe does arise in Germany, IIRC. The law was changed (last year?) to make hosting of software that is intended for criminal activity to be a crime itself.
There was a flurry of interest at the time, and I'm not sure if the German government followed through. But, that would make GitHub potentially liable for hosting "nefarious" applications (and with no safe harbour arrangements, AFAIR).
Yes there is, Popcorn Time just got hit with one. And it's going to be a long and arduous battle in courts before the repository is back up.
You're right that the law as written does not recognize those notices, but they get filed, and they get respected by the hosters, ergo they exist.
It's understandable for Microsoft to follow the DMCA notice and take down procedure but none of this adds legal weight to a "creative" reading of the law. If something isn't clearly in line with the clear text of the law it means exactly jack shit without a actual court decision backing up the lawyers interesting interpretation of the text.
Its insidious because it probably wont be settled at all and the settled truth is that you can mostly abuse the DMCA to have anything taken down for 2 weeks unless they have the funds to sue you for it.
Future imitators will presumably be toolkits where you plug in your own "channels" and will be promoted as tools for people create their own youtube competitors.
With a bit of work you could probably have actual non infringing users for example a provider of tech or how to videos with a more generous sharing arrangement compared to youtube.
Hashes of copywrited works are derivative works and therefore still subject to the DMCA. Much like how down sampling 4K content to 1080 is irrelevant for DMCA takedown notices. https://en.wikipedia.org/wiki/Derivative_work
You would need to make the argument that the hash of the movie was somehow relevant to the original content of what made the movie that movie.
It’s not about format, it’s a question of the source of originality. Hashes are a mechanical transformation without creative input, they use the entire work, and are frankly as close to the definition of derivative work as it gets.
Normally the way around this is a fair use exception, but I doubt that applies here.
A derivative work need to use the copyrighted work for what it is.
The hash of a movie is no different that the weight of a printed book or its number of pages, it would be absurd for an author to file a DMCA takedown against all books that weight the same amount of milligrams.
For this analogy, you have to talk not about selling the ashes, but about asserting copyright of your own on those ashes. Your printout of the book would unquestionably be covered by the original author's copyright. The fire would certainly be judged to have made your pile of ashes a transformative use, and any remaining legible letters in your pile of ashes would be in every way de minimus, and you haven't hurt the market for the original book, so you have an extremely safe fair use defense.
My point is that the object of the copyright is neither the physical book nor the bitstream in which the movie is encoded, but the book itself and the movie itself.
For example writing a fanfiction of a movie is not transformative because the plot, story, setting, and characters are usually all copyrighted and a fanfiction (generally) use them as-is.
The physical medium is subject to copyright to the extent it can act as a medium for the copyrighted work.
I am not saying that it is legal to sell those first ashes as a product if marketed with the recipe. So I am also not arguing that hosting hashes of movies with the purpose of facilitating piracy is legal (I actually think it is not), but I do not think the reason has anything to do with it being transformative of not.
(I just now realize that ashes/hashes looked like the set up for a pun... it was actually purely coincidental)
The only possibility I see is to argue the hash as a simple fact without copyright protection, But, the contents of a book is also a piece of factual information yet copyright is not irrelevant.
PS: As much as you want to use burning as an analogy, a burned book can’t be used to verify a download of the original work where popcorn time’s hashes can.
I have nothing against arguing that hosting hashes is illegal. It is not that far from facilitating piracy. What I am quite sure is that the hash itself is not covered by copyright.
If you can prove that I am hosting a file whose hash is equal to the hash of a mp4 file that encodes your movie then you can (probabilistically) prove that I am hosting that same file. This is also exactly how bittorrent authentication work if I remember correctly. (my only defense would be to exhibit a non-your-movie- file that still has the same hash)
But this would be no different (or at least comparable) than offering an easy to use list of download links. It would still have nothing to do with whether those links/hashes are derivative or not.
Copyright isn't about mathematical derivatives its about protecting the licensed distributor as the sole source of the work. A single screen of a movie or a single page at least is part of the work. Even the first letter of the first word of a book represents a larger portion of the work. It's one nothingth of the work because you can't even derive that first letter from it. Judges are probably substantially interested in the purpose of the law. In math not so much.
IANAL, but this comes close to the API/phone book/map arguments where you can copyright a specific expression (a specific map, phone book, with a curated selection) but the facts themselves are just that, facts, and not copyrightable.
The hash is not the movie, cannot be transformed into the movie. You can search it on your favourite piracy site to find the movie, but a similar functionality could easily exist for title + length
Use of a hash by a database to index files is likely fair use, but a torrent site aiming to promote copyright infringement is a different argument.
PS: The Harry Potter movies also can’t be transformed back into the books, but they are clearly a derivative work.
Someone already came up with the correct analog. Its metadata like the ISBN or number of pages. Both datum are in fact derived from the actual work but nobody argues that the number of pages is a derivative of the work.
1. Transformative use. The uses of e.g. an MD5 hash of a movie file are not similar in any way to the uses of the movie itself, however represented.
2. Market substitution. The availability of hashes cannot possibly damage the commercial market for the movie. Nobody who wanted the movie is going to content themselves with the hashcode instead.
So hashes are always going to be in the clear. To the extent that Popcorn Time violates copyright by providing lists of hashes, that is because of a consideration of the Popcorn Time ecosystem generally, not because the hashes are violations in themselves. They aren't.
Clearly some uses of a Hash qualify for fair use, but it’s hard to argue that Popcorn Time is one of them.
My guess is that in this context the hash is claimed to be comparable to a link.
Similarly, proving where something comes from can be difficult, but let’s not pretend people are independently coming up with 100’s of bit hashes.
PS: As to ownership, both the creator of a derivative work and the creator of the original source have specific rights which in theory expire at different times. Fair use exceptions can also supersede those rights.
The canonical essay on this matter, I think, is: https://ansuz.sooke.bc.ca/entry/23 .
In cases where this is possible, it's often not possible to hold a copyright over the phrase for reasons of lack of creativity. The main difficulty isn't proving independent creation, it's proving that a third party didn't also come up with the phrase independently.
if a hash is a derivative work because it is based on the original work, what hope is there that a copying a function call from an API is not a derivative work?
Maybe someone could make a clean room version of the hash.
> Held: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.
source: https://www.law.cornell.edu/supct/html/04-480.ZS.html
This doesn't contradict the claim you're responding to. It may well be that Popcorn Time is illegal by way of contributing to copyright abuse, as you claim.
But that doesn't make a DMCA claim the correct tool for taking it down. As was said earlier, a DMCA claim specifically asserts ownership of the IP in question, and that is clearly not applicable here.
So sure, there's probably some tool that could be used to get it removed, but DMCA is not it. I'd guess they'd need some kind of more general cease and desist.
[0]: https://github.com/popcorn-official/popcorn-desktop
[1]: https://github.com/github/dmca/blob/master/2020/05/2020-05-0...
So any Patreon account or Slack account a Popcorntime team uses. I imagine this is what The Motion Picture Association is aiming for.
And as you hint, the difference between the court's regard for ordinary people vs powerful organizations is especially stark here. Copyright infringement and any tool that might be used for it is mightily prohibited while car theft tools like the Slim Jim are still manufactured and easily available in stores. But only tools made by less powerful groups like Popcorntime and Grokster, as far back as VCRs, those tools produced by large corporations remain legal.
However, the section involving takedown notices doesn't seem to be related: https://www.law.cornell.edu/uscode/text/17/512
So as best as my non-lawyer brain can figure, one shouldn't use the DMCA to take down anything other that content that infringes the copyright of the person sending the DMCA notice. Since the attachments to the DMCA notice were redacted, we can't see what they're claiming as direct infringement.
However, I'm not sure it's Github's job to decide that. In theory PopcornTime can file a counternotice saying the do indeed own everything in the repo.
They'll probably do so, as it's not the first time this happen to them, I guess now they know pretty well how to deal with that kind of harassment.
So "intent" can be pretty broad according to the copyright mafia.
Here is the rule for truck drivers listening to the radio in their truck: they have to pay extra copyright fee because they are listening in their work environment, and therefore the normal copyright that radio is already paying is not enough.
So, yes; this is a clear case of DMCA abuse.
This goes back to the whole linking to infringing content is infringement, especially when the main purpose of the site / aggregator is to infringe
The popcorn time name, brand and project has been steadily dying in any case - I found out a few months ago that a friend purchased a $60 a year VPN because popcorn time told him he needed it (that's the revenue model for the developers). Turns out they charged his card for close to $180
Also I use magnet links to download drivers and OS’s all the time. It’s not illegal, although it could be used as such - at least the same way a website can. Shall we start DCMAing chromium or Firefox? Obviously, you can use the web browser for nefarious purposes.
If Chromium or Firefox set their default homepages to 1337x or eztv and tied their search box into their results you'd bet they'd also get an DMCA notice
Google remove the links from _search results_
the third one has 11 different links to 1337x
Your friend is easily manipulated and is a prime candidate for an ad blocker. As silly as it is to sign up to pay multiple years in advance if he is actually using a site where he pirates movies he actually DOES need a VPN and 180 dollars for 3 years is only 5 usd a month which is relatively standard.
Pretty sure based on what?
Movie studios are most concerned that this could even lead to people pirating content without realizing that they're doing something illegal.
Ultimately, choosing a centralized provider versus elsewhere doesn't have a lot of impact. The MPAA can send notices to your hosting provider, your domain registrar, your internet service provider, or ultimately, get the police to raid your house/office and confiscate your personal machines.
The idea that the Internet exists outside of the real physical world, and you can just do whatever you want is a fantasy sold by science fiction, but exactly that: A fantasy.
The MPAA is a multi-billion dollar bully, that's the long and short of it. PopcornTime has never itself been guilty of copyright violation, even if its users have been, and the MPAA ought to know better. Even if they were going after it for showing copyrighted posters or frames in their screenshots, that's frivolous as hell and clearly covered by fair use. What they're really doing is bullying: they don't like what this application does, even though they know it's legal, so they'll utilize an broken law which is absolutely ripe for one-sided abuse by copyright holders to screw the little guy, knowing there's no oversight and will be no reprecussions for their behavior.
Copyright must be abolished. The fact that anything created today will never enter the public domain within any of our lifetimes proves that the system has failed. We have an obligation to exercise civil disobedience to protest the broken system. I will shed no tears for billionares caught up in the flack. They never shed a tear for the tens of thousands of people they screwed with expensive lawsuits, nor the billions they screwed out of their rightful inheritance of the collective works of humanity.
Maybe walk back the rhetoric, calling people who disagree with you "bootlickers", etc.
> The law agrees with me in former case, and disagrees with me in the latter.
and less about this:
> I'm also pointing out that in clear-cut cases of the DMCA, I think the law is wrong, and I side with the defendant, in spite of the law. The law is not the arbiter of my personal code of ethics.
I suspect we have similar opinions of the DMCA, but would very much prefer if we didn't conflate "I dislike the DMCA" with "I think this is an abuse of the DMCA (specifically: regardless of my opinion on the DMCA, I think this is an overreach)". It's like if we were discussing whether a person sentenced to death is guilty or not, and you came in and said, "I can't possibly see why we could side against the victim, I don't like them, the death penalty is stupid". All of which might even be an opinion shared by the people discussing it, but not only are you off topic but you're doing your argument a disservice as you're tying it to something that's not what you are arguing.
(I'm being a stickler on this, because like I said, I likely agree with your viewpoint and would very much rather you not allow people to come up with lazy responses to you.)
Did I just commit a crime? I don't think so. Call the cops if you disagree, I'll stand in court for it.
I'll admit, I'm not actually sure where the law would fall in that situation, but I think the police would have a lot of questions for the car manufacturer, and I'd be on their side.
How easy do I have to make it to commit crimes before I've made it too easy? The answer is it doesn't matter. There is no scenario in which I am legally at fault if you commit a crime with tools you got from me.
If I serve you alcohol and then you drive drunk...
"The majority of states consider bars and restaurants to be liable for injuries or fatalities caused by an intoxicated individual who's over-imbibed in their establishment." [1]
The key phrase is "significant non-infringing use". Shoes are obviously not built specifically to enable people to commit crimes. And most people who use shoes are not using them to commit crimes.
PopcornTime was built specifically to enable copyright infringement. The vast majority of people using PopcornTime do so to gain unauthorized access to copyrighted material.
This bit doesn't even have anything to do with the DMCA. (Regardless, I agree that this particular case is an abuse of the DMCA takedown process.)
I despise our current copyright regime, though perhaps not with the vehemence that you have. But no matter what I wish the state of things would be, this is the law, and this is how judges have interpreted it ever since Napster showed up in their courtrooms (at least).
What the courts actually said is that enticing can get you secondary liability (contributory and/or vicarious). They maintain that there is a distinction between contributory infringement, vicarious infringement, and direct infringement. The DMCA takedown procedure is only defined for direct infringement.
From the Grokster summary ( https://supreme.justia.com/cases/federal/us/545/913/ ):
“One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.”
It doesn't get you out of all trouble, but it does get you out of charges of direct infringement.
"You run Erowid, which is a comprehensive reporting about all sorts of drugs, what they cause, their interactions, their prices, and all details. You don't sell drugs anywhere, and minimally comply with required statues."
Is Erowid selling drugs?
>It isn’t like someone has locked away a Van Gogh painting
It is exactly like this.
Now, if you want to talk about synthesising "copyrighted" drugs and giving them away, or even selling them for a fraction of the price, I'm with you 100%.
Patented; it's called "patented". And thanks to the magic of supply and demand, even selling them for same price would help, if not as much.
Take a look at Fonovisa vs Cherry Auction, a landmark case in developing the concept of “contributory copyright infringement” and “vicarious infringement.” This was a key precedent in the case that effectively shut down Napster.
Cherry Auction was a swap meet that was the site of the sale of counterfeit recordings (probably cassette tapes, it was early 90s) including counterfeits infringing on copyrights held by Fonovisa Inc. It was established that the swap meet knew that alleged piracy was going on; among other things there had been a massive police raid after which such sales continued.
The swap meet’s position was essentially what you are saying — I don’t do any infringement, not my problem. A district court agreed but was overturned on appeal, with the appeals court reasoning, to oversimplify, that the swap meet routinely patrolled vendors, gated admission by consumers, and reaped financial benefit in the form of rent — essentially it had the knowledge and power to stop the infringement, and profited by failing to do so, therefore it was a party to the infringement.
I don’t explain any of this to say the takedown here is necessarily right, just to give some context. And admittedly context only applicable to the app’s US legality. Namely, it’s not enough for PopcornTime to not itself infringe, under the law as now understood. (IANAL, btw! Just followed some cases.) It needs to be in a position where it is not materially contributing to the infringement — knowingly and directly.
I believe vicarious infringement has a financial benefit prong (which popcorn time as a volunteer effort may lack) but that contributory infringement does not. At least based on the wording in Fonovisa which is almost 25 years old https://copyrightalliance.org/wp-content/uploads/2016/09/Fon...
In the Napster case, Napster’s control of the central search index proved key in establishing it enabled and knew about infringement. The particulars of how popcorntime works are presumably important in establish whether it is knowingly and directly enabling infringement. And liability for github if any is going to be murkier — they are some hops out here from the infringement of (some) popcorntime users.
An extreme overstep of jurisdiction by the USA government on behalf of MPAA.
For none of the files referred in the claim they own the copyright to. So the claim is bogus.
The discussion about whether digital piracy should be illegal is a separate discussion, for now it is illegal and PopCornTime's number finally came up. They the aren't the first piracy enabling tool (UseNet, Napster, BitTorrent, etc.) and they won't be the last. But it is true that the systems that survive are decentralized. PopCornTime was/is pretty decentralized overall, they just took a hit at one of their centralized points. I'm sure there will be several new repositories that appear in other places around the web very soon.
So yes, this is an abuse of the DMCA, but also yes, PopCornTime contributes to piracy.
Also, you can't simultaneously claim that they "bore some responsibility" and then try to put off "discussion about whether digital piracy should be illegal". Claiming they have moral responsibility is opening a discussion about what's right and wrong, which is at the heart of any serious notion about what should be illegal.
I also did not claim that PopCornTime has a moral responsibility, I said that using clever phrasing doesn't make something illegal into something legal.
As an example, the federal murder-for-hire law is what specifically establishes legal culpability for your not-quite-analogous example: https://www.law.cornell.edu/uscode/text/18/1958
DMCA claims aren't even related to morality and the issues are always black and white. Either the plaintiff has copyright over the items they claim or they don't and it belongs to someone else or no one. In this case they cannot in any way claim that they have ownership of the code or product unless the popcorntime project has a signed dislaimer all devs agree to handing over the rights to the code to someone else (not likely).
So, simply DMCA abuse.
Popcorn Time is ostensibly built to access and watch copyrighted material without permission from the copyright holder. No-one is pretending they’re using it only to watch Big Buck Bunny. It isn’t like a general-purpose BitTorrent client either because those generally don’t market themselves as tools for copyright infringement and torrents are widely used legitimately for free-software distribution. You’d have a point if it was uncalled “Popcorn-and-Slackware Time” - but it isn’t.
Disregarding the inevitable 2A analogy (“knife” -> “gun”), the concept of dual-use is recognised by legal precedent: the maker of a knife intends for it to be used in culinary or outdoors survival scenarios. If I sold my own line of knives with a TV and billboard campaign emphasising about how my knives are specifically designed to shank people with - and someone inevitably does get shanked by one of my knives I fully expect to be at the receiving-end of at least a civil liability suit - but most likely some criminal charges for recklessness.
I recognise that Popcorn Time itself isn’t violating copyright and so cannot be the subject of a DMCA takedown notice, Popcorn Time might be viewed as falling under the DMCA’s Anti-circumvention clauses or something similar. And if the courts somehow find it to be completely in the clear, I guarantee that within a few years the MPAA will get a new copyright law on the books that specifically considers the intent of the creator or distributor of a tool involved in copyright infringement.
The language regarding takedown notices in the safe harbor provision is worded toward copyrighted material and not piracy tools, but GitHub really can't play dumb after this notice. They have been notified that they are hosting an illegal tool, and if they want to continue being considered an immune service provider under the safe harbor provision they will have to keep the repository disabled. If GitHub willingly reinstates a repository that they know is illegal they could lose their status as a protected service provider and then the MPA can sue them.
It's not abuse of a DMCA takedown notice to use it against tools that are intended to infringe on copyrights (specific copyrighted works are presumably detailed in Exhibit A of their notice that I couldn't find). The MPA isn't being dishonest and claiming that they own the code, they are claiming that the code is predominately intended for illegal purposes under the DMCA. It's creative, but not dishonest. This isn't someone spamming DMCA notices at some innocent coder, this is pretty much the system working as intended.
Read the actual laws here: https://www.law.cornell.edu/uscode/text/17 And some decent summaries here: https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A... and here: https://en.wikipedia.org/wiki/Online_Copyright_Infringement_...
The text of the law that you encourage us to read says:
> No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
... followed by many exceptions. But that's section 1201, which is not referenced by section 512 that defines the takedown procedure.
> but GitHub really can't play dumb after this notice. They have been notified that they are hosting an illegal tool, and if they want to continue being considered an immune service provider under the safe harbor provision they will have to keep the repository disabled. If GitHub willingly reinstates a repository that they know is illegal they could lose their status as a protected service provider and then the MPA can sue them.
There's actually a provision in section 512 that protects GitHub should they choose to ignore what turns out to be an invalid takedown notice—they are legally considered to not be aware of infringement or infringing activity.
> It's not abuse of a DMCA takedown notice to use it against tools that are intended to infringe on copyrights
The takedown notice procedure is only specified for works that are an actual infringement. A tool for infringement is not the same as the product of an infringing action. There's no room for "creativity" here. The MPA does not own any exclusive rights regarding copying, distributing, modifying, etc. the pieces of software they object to, because that software is not a copy or derivative work of any of the movies they own copyright to.
If the creator isn’t getting paid for you to watch, then it’s theft. Doesn’t matter if it’s stealing bits, or stealing gold. It’s theft. Rationalize all you want, but if the owner of the content is having their content used against their will, then you are violating their rights.
If the code were an ATM pin code cracker, would that be any different? After all, money is just data right? Just bits stored at the bank.
Let’s also stop conflating “open source” with “right to steal.” Completely different things. If you download a pirate movie, that’s theft — it weakens the concept of open source when it gets lumped into the movement for “free” content.
It’s ironic that a lot of open source people love to talk about licenses — while desiring enforcement of those licenses while at the same time arguing that the license to use someone else’s work is fair to violate.
On the other hand, the 'stealing' isn't as much the media, as it is the 'consuming' of it. I'm not sure what the correct terminology is, but a lot of people don't think of it as accessing information that isn't public and has a price to access it (be it books, movies, games), but the lawyers (and probably the 'legal owners') do look at it that way. Of course a lot of PR happens during wording and publication and it's much easier to say 'this bad person stole this movie' instead of 'this person gained access and consumed this information while not being allowed to do that'.
No. Lots of pen testing stuff exists in the open source realm. A society that allows exploits to be "free speech" is anti-fragile.
Except that bits and bars of gold are nothing alike which is why you can't be convicted of theft for copying bits. Given that there is literally no relation in law nor morality between theft and copyright infringement even if you believe copyright is effective and desirable tool you could skip a lot of misunderstanding by skipping the part where you use a bad analogy to muddy the water.
Every illegal download reduces the size of the legal purchase marketplace.
Quotes are for referencing literal quotes of the parent post or at least quotes from the parent poster not to put words in others mouths.
There's never been a single study proving that illegal downloads harms legal sales.
Source? Why wouldn't it be possible for every illegal download to increase the size of the legal purchase marketplace? Or to have it effectively stay the same for that matter?
The back catalog stuff (Rolling Stones etc) probably suffers although IMHO the copyright on this stuff should be much shorter anyway.
Nonsense. In some cases it might be copyright infringement, but only a court can decide and only on a case-by-case basis. How else do we determine if a reproduction is fair use?
"if the owner of the content is having their content used against their will, then you are violating their rights."
That is not how copyrights work. Criticism and parody are allowed whether or not the copyright holder agrees to it, as are various forms of sampling to create new works. Again, whether or not a given act is infringing is something a court has to decide.