> 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”.
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.
> 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".
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.
> 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.
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).