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Comment by _23sd | Hacker News Reader

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.

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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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