GitHub Reinstates Popcorn Time Code Despite MPA ‘Threat’
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passivetech.com
0: https://docs.github.com/en/free-pro-team@latest/github/site-....
1: https://github.com/github/dmca/blob/master/2020/05/2020-05-0...
> and in plain violation of Section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. §1201.
Doesn’t mean it’s legally valid, just that the service provider must take it down until they receive a counter.
It’s just a letter making demands that cites the DMCA. It carries no legal weight other than the implied threat of a lawsuit.
They used a DMCA (17 U.S. Code § 512) takedown notice not to complain about infringing content but to complain about "circumvention" (17 U.S. Code § 1201). This is probably outside of the scope of DMCA notices, but courts often rule like common people would not expect (shout-out to Google vs Oracle).
Github then followed the letter of the law (and case law and jurisprudence) and processed the takedown request without looking into the merit, just making sure the notice had the required elements under the DMCA. Doing anything else would potentially open up Github to liability.
Now it's up to yt-dl to file a counter-notice, pointing out that the RIAA members do not actually own any copyright to the code itself (and maybe also state that yt-dl is not "primarily" a "circumvention" software according to 17 U.S. Code § 1201), and see what happens.
RIAA can then file a lawsuit, which at this point they would probably win just because they can throw more money at it. Hurray for the US civil law legal system, where the richer party almost always wins.
RIAA sent a letter asking GitHub to take a repo down and they listened. They weren’t legally obligated to but they chose to and that’s their right. A counter notification wouldn’t necessarily do anything since the original letter was not a takedown notice. GitHub can’t be compelled to host something they no longer wish to host.
It does not lack any of the required elements (compare https://www.law.cornell.edu/uscode/text/17/512 ). In fact, it is specifically written to hit all the required elements. Let's go through this.
Statement there is copyright infringement and demanding takedown:
>In light of the above noted copyright infringements and anticircumvention violations, we ask that you immediately take down and disable access to the youtube-dl source code at all of its locations where it is hosted on GitHub, including without limitation those locations in the representative list set forth above.
(yes, the "copyright infringement claim is very most likely bullshit, but it's not Github's place under the law to rule on it, unless they want to lose their safe harbor protections and open themselves up to potential liability)
(vi) statement of authorization (with perjury)
> Under penalty of perjury, we submit that the RIAA is authorized to act on behalf of its member companies on matters involving the infringement of their sound recordings, audiovisual works and images, including enforcing their copyrights and common law rights on the Internet.
(v) statement of good faith of accurateness
>We have a good faith belief that this activity is not authorized by the copyright owner, its agent, or the law. We assert that the information in this notification is accurate, based upon the data available to us.
(iv) and (i) contact details and (electronic) signature
>You may contact me at RIAA, [private] Tel. [private], >[private]
(ii) identification of content
>We also note that the source code prominently includes as sample uses of the source code the downloading of copies of our members’ copyrighted sound recordings and music videos, as noted in Exhibit A hereto. For example, as shown on Exhibit A, the source code expressly suggests its use to copy and/or distribute the following copyrighted works owned by our member companies: [list]
(yes, this is basically trickery to hit the (ii))
(iii) identification of infringement
> https://github.com/ytdl-org/youtube-dl [...]
And there you go, all 6 required elements + claim of infringement + demand for takedown are there.
As opposed to any other legal system?
Earlier lawyers had fees capped at fairly low levels. Money wasn't a thing since lawyers were fixed-price for a type of case, by legislation.
If Biden is talking about serious judicial reforms, simplifying the court system to where individuals can represent themselves, and capping legal fees seem like the ways to do it. He'd never do it, though; the democrats are in the pocket of the legal lobby.
The US has always had lawyers; a great deal of the founding fathers were themselves lawyers.
Fees were never fixed by legislation, generally cases were simpler back then so they didn't have or need time-based billing (that was a relatively recent development).
Individuals already can represent themselves in small claims courts. Federal courts are intended for much larger cases (and in fact there is a minimum threshold for cases to be in federal court) and capping legal fees there generally wouldn't benefit either party.
* US is a common law jurisdiction, and indeed, pre-colonization UK courts sometimes act as precedent for post-revolution US courts.
* US courts come from colonial courts
If you'd like to read more:
https://en.wikipedia.org/wiki/History_of_the_American_legal_...
"Legal procedures in the 17th century were quite informal, with judges discussing issues directly with the people involved in the case."
"Colonial legislatures passed laws to fix the fees lawyers could charge for standardized procedures and maintain these fees relatively low. This often led some lawyers to handle a high volume of cases more speedily."
... and so on.
By the time the US formed, you had plenty of lawyers, but you had plenty of people representing themselves (and in cases above what would go into small claims).
The concept of statutory legal fees is a good one. It's present in a form in the German legal system. It's limited; you can pay more than statutory fees, but you can't recover more than statutory fees if you lose. That's still powerful. I know of a case where a big party PROBABLY owes a small party a few million dollars, but if they came out liable for opposing side's legal fees, they'd be bankrupt. And the litigation would cost a few years of their life.
And yes, cases were simpler, but that's as much a property of the unnecessary rising complexity of our legal system as of the cases. Modern cases shouldn't be so complex.
They might decide not to counter-notice, because there's a big trap in the DMCA counter-notice: as far as I know, for a DMCA counter-notice to be valid, the one doing the counter-notice must agree to be bound to the jurisdiction of an USA court. If the youtube-dl author is not from the USA (I think he's from the EU), that would expose him to legal risk.
(As a non-USA person, to me this is the most evil part of the DMCA take-down system: even a defective DMCA notice leads to a dilemma, either you keep the content offline, or you risk being sued in a foreign jurisdiction you have no control over. This is also why I believe one should always prefer to host in one's own country, so that any dispute can be resolved by the local courts.)
Is there any reason why that wouldn't fully protect them from legal risk if they wanted to visit the US personally?
(Though I would guess you probably can't do that retroactively.)
0: https://en.m.wikipedia.org/wiki/United_States_v._Elcom_Ltd.
And US courts do "veil-pierce" through entities set up for the sole purposes of evading investor liability. (It's complicated to explain, but in a very simplified nutshell if an entity is set up for the sole purpose of evading liability for criminal acts, regulatory violations, civil torts, or responsibility for financial losses, then the courts will disregard the legal entity and just go straight to the owner(s).)
The RIAA is the industry licensing group for a multi-billion dollar industry. They have the resources to go after everyone who claims ownership of the code, and copyright damages under the DMCA are no laughing matter: they could drive you into bankruptcy or saddle you with debts for the rest of your life, precluding home ownership, paying for your children to go to college, retirement, etc.
Laughed at loud, especially at "please check again."
Something a developer would definitely say.
> So that the complaining party can get back to you, please provide both your telephone number and physical address.
> Please type your full legal name below to sign this request.
(https://github.com/github/dmca/blob/d7f4a6a3aade92999d4d8696...)
And if they did, then it would be interesting to see if MPA ended up going after them. If I were youtube-dl then that would be the only thing that might stop me from writing a counter-notice.
It's from May 2020, for anyone else wondering if this was pre-Microsoft acquisition - it wasn't.
Proper link: https://torrentfreak.com/github-reinstates-popcorn-time-code...
Would it be lawful for Microsoft and RIAA to coordinate a DMCA skirmish entirely as a PR move?
IIUC, you can't do that with an actual, legal trial. (I'm not clear if it's actually illegal to do so, or if it just makes judges angry.)
I'm talking about Microsoft and RIAA hitting each other with DMCA takedown notices and counter-claims, but stopping short of actually filing suit.
"But most of all, the legal profession has failed. Democratic governance depends upon responsible individuals throughout the entire system who understand and uphold the law, not who understand and exploit it. On average, lawyers have become so deeply corrupt that it is imperative for major changes in the profession to take place, far beyond the meek proposals already on the table. To start, the term “legal ethics,” upon which codes of conduct and licensure are nominally based, has become an oxymoron. Mossack Fonseca did not work in a vacuum—despite repeated fines and documented regulatory violations, it found allies and clients at major law firms in virtually every nation. If the industry’s shattered economics were not already evidence enough, there is now no denying that lawyers can no longer be permitted to regulate one another. It simply doesn’t work. Those able to pay the most can always find a lawyer to serve their ends, whether that lawyer is at Mossack Fonseca or another firm of which we remain unaware. What about the rest of society?" [1]
[1] https://www.icij.org/investigations/panama-papers/20160506-j...