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Comment by michaelmrose | Hacker News Reader

There is no such thing as a DMCA notice for contributory copyright infringement. A DMCA take down notice describes a particular resource that the claimant claims to be their intellectual property.

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.

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Even if Popcorntime was considered functionally the same as Grokster, GitHub certainly isn't. In order for GitHub to be held liable, not only would the DMCA have to stretch to Grokster like tools but even further to anyone who provides any service to such a team building such a tool.

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.

SCOTUS has ruled that creating a program who's purpose is to circumvent copyright, is a violation.

> 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

SCOTUS has ruled that creating a program who's purpose is to circumvent copyright, is a violation.

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.

...which is there was no DMCA in this situation. The title is wrong. They didn't file a DMCA claim.

…what? The repository [0] shows up as "unavailable due to DMCA takedown," and links to a notice [1] that explicitly references the DMCA.

[0]: https://github.com/popcorn-official/popcorn-desktop

[1]: https://github.com/github/dmca/blob/master/2020/05/2020-05-0...

That's because Github doesn't have a different message for non-DMCA threats of lawsuits. If you look at one of the other top-level comments, you'll see that they didn't actually get a DMCA takedown - but a threatening lawyers letter.

But is it a violation that you sue about, or a violation that you are entitled to take down with a DMCA notice?

The title is incorrect - there was no DMCA notice.

Probably we should go on the negative recipes then, the way they did back during prohibition (e.g "do not do that with this solution")

> A DMCA take down notice describes a particular resource that the claimant claims to be their intellectual property.

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.

> The notice provides the Grokster verdict as evidence for their good-faith belief that distributing the source code isn’t allowed by copyright law.

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.

c.1.C describes the effect of a notice in essentially the same terms as c.1.A.iii, which describe how to maintain immunity generally when informed of the circumstances in the other two clauses of c.1.A .

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.

> 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.

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.

Contributory infringement is, I assume, one category of “infringing activity” that is covered by the safe-harbor provisions. As the purpose of these provisions is to allow service providers to operate legally without having to evaluate the legitimacy of copyright claims, it would make sense.

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.

I don't think your analysis is correct. Contributory infringement is not itself infringement, it is enabling someone else's possible infringement.

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).

> 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.

> This DMCA complaint does not provide "information reasonably sufficient to permit" GitHub to find movie piracy on GitHub

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.

> A deficient notice ... doesn’t get to use c.1.A as a fallback.

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.”

It’s not an insurmountable issue, but you need to avoid hosting anything derived from copyrighted works. I would suggest public keys that can be used to verify some other repository is legit. Then running a distributed network those signed repository’s are passed around.

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

Hashing and down sampling cannot possibly be covered for similar reason. A down sampled movie is still a movie, an hash cannot possibly be used to obtain anything of the copyrighted content.

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 a question of being the same thing. If you use a single frame from a movie in a painting that’s still a derivative work.

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.

I disagree on this definition of derivative. A still frame is still clearly part of the movie, on the other hand if I buy an harry potter book, scan it by hand, print it on paper then burn the print and sell the ashes, that is clearly not a derivative work.

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.

> on the other hand if I buy an harry potter book, scan it by hand, print it on paper then burn the print and sell the ashes, that is clearly not a derivative work.

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.

Then a more similar case. I make a oil painting of the weight in milligrams of the book (either using or not the ashes in the process).

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)

Fanfiction of Calvin and Hobs with Calvin the 45 year old parent of an 8 year old girl could easily be transformative without reusing any plot elements. However, if 10 people are all going to end up with the same Hash from the same bit stream you can’t argue it’s a creative endeavor. It’s also not a tiny excerpt as changing even a single bit of the work out result in a different hash. Thus the size of the hash is irrelevant, it’s still copying from the full work.

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.

The hash matches an infinite subset of infinite works. The same thing can glibly be said of any digital representation but the difference is that an algorithm exists to turn the number represented by the flac file back into sound that human beings can enjoy. None such exists for a hash it can never be turned back into the original nor even a piece of same.

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.

> used to verify a download of the original work

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.

A hash won't violate copyright based on two tests:

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.

Use of a Hash by a torrenting site to enable people to download the movie is clearly damaging the market for the original work.

Clearly some uses of a Hash qualify for fair use, but it’s hard to argue that Popcorn Time is one of them.

I don't think we're disagreeing on that point. All I'm saying is that the nature of the hash as being derived from the movie file is irrelevant. If people organized movie torrenting by assigning version 4 UUIDs to movie files, then Popcorn Time would infringe just as much by publishing those UUIDs as it does by publishing hashes. There's no "derivative work" argument being made on either side. If there was, the pro-Popcorn-Time side would win.

Is a list of movie titles and durations also copyright infringement? They require the entire work to determine, obtaining the lengths is a mechanical process with no creative input.

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

Purely factional information is not offered copyright protection. However, the specific contents of a book is also a fact yet copyright is still valid. That might seem like a contradiction, but the law is interpreted by humans who make judgement calls.

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.

The digital files unlike hashes can be transformed into coherent sound and video reproduction of the actors portrayal of the work.

A comedy set in South America where off screen they hear someone say obliviate and they start talking to someone who can’t remember anything is still a derivative work. Fair uses may apply or it might not, but it’s not simply a question of how much of the original is reproduced, but where information comes from.

I don't think you can claim to own a plot and a hash is less than a skit or a plot point. Infinitely less in fact because whereas even a single character on a page is some small fraction of the work a hash is a nothingth of the work. It can not be used to reproduce nothing. It is data about the 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.

You can't really talk about legal implications and pretend that intent doesn't matter at all. It's rarely a big part of the equation but it's never completely absent.

My claim is only that the hashes are not subject to copyright. Not that hosting them with the purpose of facilitating piracy is legal.

My guess is that in this context the hash is claimed to be comparable to a link.

Say I hash your movie and my hash is modulo 16. Do you now own the number that happens to come out? How can you prove that it was your movie that generated the hash and not some other piece of data?

Copyright is simply a question of source. Unlike patents, it’s very possible for two independent people to come up with the exact same sentence and those people to independently own copyrights to the exact same words. Proving independent creation may be difficult, but it’s still possible.

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.

> Unlike patents, it’s very possible for two independent people to come up with the exact same sentence and those people to independently own copyrights to the exact same words. Proving independent creation may be difficult, but it’s still possible.

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.

> Copyright is simply a question of source. Unlike patents, it’s very possible for two independent people to come up with the exact same sentence and those people to independently own copyrights to the exact same words.

The canonical essay on this matter, I think, is: https://ansuz.sooke.bc.ca/entry/23 .

> Hashes of copywrited works are derivative works

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.

Why are there so many apologists on HN? (Not you, the person you replied to)

> There is no such thing as a DMCA notice for contributory copyright infringement.

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.

People have also successfully gotten videos taken down from youtube by claiming copyright to bird noises that doesn't mean anyone owns bird sounds.

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.

You can own a bird sound just as easily as you can own a picture of a bird. In the copyright sense of "own".

The law defines whether a document qualifies as a DMCA takedown notice, not the manner in which the document is being used. Somebody other than a court declaring a document to be a DMCA takedown notice doesn't make that true.

> 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.

> In the US, the DMCA makes a criminal offense to circumvent access control.

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).

> 1) The DMCA takedown process only applies to direct copyright violations, not to circumvention tools.

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.

I’m pretty sure what you are quoting is something else entirely, not a DMCA Takedown Notice.

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 pulled that from the take down notice that was posted publicly on Github.

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.

The point the person arguing with you is making, is that you'd actually have to sue for this kind of infringement, not use a DMCA takedown notice for it. The suit would like be valid! But that doesn't mean that a DMCA takedown notice upon the same 'premise' is valid. 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. For everything else, you have to actually sue—and actually win—in order to get something taken down.

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.

How is a DMCA takedown notice fundamentally different than a Cease and Desist letter?

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...

> Are companies required to adhere to a DMCA notice, or is that just policy to avoid litigation?

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.

> 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.

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.

Neither of your points is correct. I'll start with your second point since the situation there is more clear.

> 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".

> I’m pretty sure what you are quoting is something else entirely, not a DMCA Takedown Notice.

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...

This seems irrelevant as the person you are replying to is claiming that the notice is by its nature invalid. Quoting the notice they claim is invalid does nothing to prove them wrong.

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.

I think the problem here is that the people arguing have two opposing philosophies of the law -

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.

If the "valid until ruled otherwise" interpretation was correct, then why does the law have provisions that clearly anticipate that service providers may choose to decide for themselves that a purported DMCA takedown notice they have received is invalid? Those provisions offer significant protections to service providers, so the law seems to encourage rather than discourage providers to ignore deficient takedown notices based on their own judgement of how the notice measures up to the statutory requirements.

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.

everyone has the ability to ignore any order they are given at any point for whatever reason but some times people obey orders because they think they will get shot if they don't.

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.

> everyone has the ability to ignore any order they are given at any point for whatever reason but some times people obey orders because they think they will get shot if they don't.

Why are you talking about orders? DMCA takedown notices aren't orders.

nor do you get shot for ignoring takedown notices, there are in language many things such as analogy, metaphor and so forth that people generally manage to follow.

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.

> 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.

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.

>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

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.

> The js files are the subject of infringing activity. Popcorn Time is "inducing infringement" as stated in the unanimous SCOTUS ruling against grokster.

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.

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