MPAA Stretches DMCA To Breaking Point With Questionable Take Down Request For Popcorn Time Repositories
from the stretch-stretch-stretching-the-law dept
Torrentfreak has a story about how the MPAA has pulled various Popcorn Time repositories off of Github via a fairly incredible takedown notice. As you likely know, Popcorn Time is the open source project that some anonymous programmers put together a while back, which puts an apparently amazingly user-friendly interface on a program allowing users to watch all kinds of video online. Of course, many of the videos available via Popcorn Time are not online as authorized versions, but rather unauthorized versions, meaning that the use of Popcorn Time to watch those videos is often infringing someone's copyright. I've never used Popcorn Time, but I've heard from a few people who say it's so good that they find it much more convenient and easy to use than things like Netflix.The original developers gave up the project after it got lots of attention (both the good and bad kinds), but as an open source project, others have picked it up. The MPAA has basically been playing a big game of whac-a-mole every time a new group picks up the Popcorn Time code. Frequently, those targeted by the MPAA have been scared off and abandoned whatever version they were working on, but there were always more to step in and try again. However, this latest strategy goes a bit further: going to Github to take down the repositories. Reading the MPAA's actual letter is worthwhile. It's a borderline DMCA notice, because they probably realize they can't file a true DMCA notice here, because they have no copyright over the code, which would be required for a DMCA takedown notice. Instead, it seems to be acting like a DMCA notice to try to either trick GitHub into taking down the works anyway, or to hope that it can just convince GitHub to side with them. At worst, it could be argued that the MPAA is reinterpreting the DMCA to try to make it an even more dangerous weapon to flat out censor technology rather than infringement.
Dear GitHub Inc:See the "notify you of, and request your assistance in addressing the extensive copyright infringement of motion pictures and television shows..." It's not a direct takedown notice. Rather it's requesting assistance. That same sort of language continues throughout:
The Motion Picture Association of America, Inc. (“MPAA”) represents each of the major motion picture studios in the United States, specifically, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, Warner Bros. Entertainment Inc., Walt Disney Studios Motion Pictures, and their respective affiliates (collectively, the “MPAA Member Studios”), which own or control exclusive rights under copyright in and to a vast number of motion pictures and television shows worldwide.
We are writing to notify you of, and request your assistance in addressing the extensive copyright infringement of motion pictures and television shows that is occurring by virtue of the operation and further development of the GitHub projects Popcorn Time, and Time4Popcorn (the “Projects”).
Attached as Exhibit A is a series of screenshots taken from within the applications of each Project that includes images of copyrighted works available through the Projects. The representative titles shown in Exhibit A consist of only some of the motion pictures and television programs that are owned or controlled by the MPAA Member Studios and that are being infringed via the Projects. Exhibit A is provided as a representative sample of the infringements being committed as a result of the operation of the Projects and to demonstrate the readily apparent nature of the massive infringement occurring via the Projects. The list is not intended to suggest that the identified infringements are the only ones occurring via the Projects. Having been informed, through the representative examples, of the nature and scope of infringements occurring through the Projects, we hope that you will act appropriately to address all infringement by the Projects, not merely the identified representative examples.Of course, all of that same content is equally available in any browser, but I don't see the MPAA asking Github to remove repositories of regular every day web browsers. From there, the MPAA sort of makes it a DMCA takedown notice with the following paragraph:
Exhibit A, moreover, merely provides concrete examples of what is obvious from even a cursory review of the Projects. The Projects blatantly infringe the MPAA Member Studios’ copyrights and countless other copyrights. Indeed, copyright infringement is so prevalent within the Projects that infringement plainly is their predominant use and purpose.
By this notification, we are asking for your immediate assistance in stopping your users’ unauthorized activity. Specifically, we request that you remove or disable access to the infringing Projects’ repositories and all related forks in accordance with either 17 U.S.C. § 512(c)(3)(A)(ii) (DMCA “representative list” provision), 17 U.S.C. § 512(i)(1)(A) (DMCA “repeat infringer” provision), and/or GitHub’s Terms of Service, which prohibits use of your facilities for copyright infringement, see https://help.github.com/articles/github-terms-of-service. Moreover, the Projects in question host software that is distributed and used to infringe on the MPAA 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”).So, yes, there they do cite the DMCA, and try to make it seem like a DMCA notice, but it's not clear they can really legitimately make those claims. Again, they're not claiming that there's any direct infringement going on here, which is really necessary. Instead, they're trying to stretch the DMCA to mean that a third party hosting company could be forced to take down a third party bit of software that might be used (or even is often used) to infringe. That's... a stretch. It's basically implying that GitHub itself might face liability by adding a tertiary level of liability to the Popcorn Time app under the Grokster inducement theory. It's a unique interpretation of the law, which some are already pointing out would make a fascinating law school question.
We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPAA Member Studios in the manner occurring via the Projects is not authorized by the copyright owners, their agents, or the law. The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPAA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein. This letter is without prejudice to the rights and remedies of the MPAA Member Studios and their affiliates, all of which are expressly reserved.
In short, the MPAA is effectively implying that rather than using the DMCA to take down infringement, it might be able to use the DMCA to take down projects that might be used to infringe. That's a big stretch, but expect to see more of that.
Of course, it's doubtful that any of that would actually do anything to, you know, slow down the continued growth and development of Popcorn Time, but the MPAA is never above continually trying to stretch copyright law to do its bidding. That it could spend some more time understanding why so many people like the Popcorn Time app and figuring out ways to help create better overall experiences for end users apparently never occurs to the lawyers at the MPAA.
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Filed Under: dmca, intermediary liability, liability, popcorn time, takedown
Companies: github, mpaa
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Dear MPAA,
The introduction is unnecessary. Everybody in the world knows who the MPAA is, who the represent and how synonymous with giant greedy lying douchebags they are.
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Way to innovate, MPAA.
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"Do what we want or we will sue you into nonexistence".
The MPAA has a history of doing that, which makes such threats more effective.
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MPAA/RIAA Lying sacks of shit
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And of course, I'd include appropriate references.
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And a nice rootkit.
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Instead of trying to go legal they could, you know, LEARN something from what the software offers and improve their own services.
We know this ain't happen and if it ever happens it will cost one kidney per month.
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> from what the software [Popcorn Time] offers and improve their own services.
The digital streaming services the MPAA blesses only serve US customers. (Try out Netflix, Amazon, Hulu.) The 'foreigners' whose money they aren't interested in constitute only 96% of the planet's population.
Therefore that 96% of the planet who are 'foreigners' should be allowed to use Popcorn Time without complaint, since they do not represent potential lost sales to the MPAA.
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They're improving, given that 2 of those services you just named are actually available somewhere other than the US now (netflix is in over 40 countries, while Amazon Video has recently expanded into Europe with the Lovefilm acquisition). Who knows, at the current rate of expansion they might even have the same reach and customer base as the average torrent site.
The MPAA would rather complain, though. Much easier to whine about piracy from people you're not even allowing to buy at any price than recognise that your business model is broken and licencing practices need to change completely.
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Its just like Congress, whoever has the biggest "contributions" wins even if its fscking stupid.
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PopcornTime using github to store their code is not using their facilities for copyright infringement; You actually have to download either a pre-compiled binary, or download the source and compile it yourself, before you even have the possibility of infringement - and that is the last point that github's 'facilities' are involved.
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But...but...inducement! Enabling! They make the tool! The TOOL is to blame, not the person using it! (unless that person can be sued for $150k per "infringement" of a product that, in many cases, is not even available to purchase through any legal means, either because it doesn't exist (early seasons of 24 and Smallville on Bluray) or no in your "region") Competit....er, Copyright Infringement MUST be stamped out!! Anyone who has ever had even a partial connection to anyone who ever "pirated" anything must be sued! (But its OK for us to use images, logos, video clips, songs and other media in our productions, because fuck you, thats why, we are Hollywood, and we own the government and the laws. Peon.)
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Setting a precedent
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Counter Notice
We really need a law with some teeth for abusing the DMCA process.
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This is simply untrue. Clearly you've had a psychotic break with reality.
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For the open source movement to survive legal attacks from megacorps with endless supplies of both cash and sociopathy, it needs to progress past centralized code storage like Github. We need some sort of distributed code repository.
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> arbitrary legal attacks, but it probably won't be the last. What if,
> say, Microsoft decided that attacking open source software would improve their bottom line?
You mean like Microsoft executives calling Linux a cancer?
Or open "Open source is an intellectual-property destroyer".
Or "open-source software as distinctly un-American".
Or "I can't imagine something that could be worse than this for the software business and the intellectual-property business."
As for legal attacks, you mean like the SCO vs IBM lawsuit started in March 2003 where SCO accused IBM of copying SCO's source code (which was later proven not to even belong to SCO) into the Linux Kernal? Almost immediately after this lawsuit, the floundering SCO was propped up by Microsoft for about $15 Million because Microsoft suddenly found out that it needed to buy some SCO licenses for, um, something.
Believe it or not, the case is not dead yet. It is on the docket of a federal judge in Utah. He has prioritized the case appropriately. He will get around to reading it after he trims his nose hairs, clips his toenails, takes several vacations, and other far more important matters that are before him.
In the meantime, Linux is everywhere. Open source is the new industry darling.
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Or anonymous git hosting like the one on I2P. Looks like the Popcorn guys anticipated this move since their code appears to mirrored there also:
http://git.repo.i2p/w/Popcorn-app.git
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DMCA is a tool used for censorship and repression. DMCA is not compatible with human evolution.
Enlightened societies have no use for draconian DMCA censorship and repression tools.
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Not so much. Grokster et al. got in trouble not because their software could be, or even was being, used for copyright infringement. The same was true of Betamax: it was being used for copyright infringement. No, what got them in trouble was how they advertised theirs software: "5 million songs available!" GitHub wasn't advertising that code hosted on its website could be used to "Stream 5,000 movies!" The MPAA is totally twisting, as usual, the inducement doctrine into something unrecognizable.
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Thank you MPAA...
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No github for me
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What a very interesting precedent
"I am writing to you in relation to local statutes regarding murder. It has come to this department's notice that your company's facilities have been used to manufacture a device that is used to 'kill' people and animals. I have enclosed photographs, along with details of several investigations into these activities, and seek your assistance in stopping this unlawful activity.
"My clients, the Attorneys-General of the states several and singular, seek your immediate removal of this capacity to create 'weapons' from your factories. This notice is a good-faith request, however my clients are looking very closely at your relationship with this 'murder' activity and will not hesitate to take further action if it is warranted by your response to this request.
"I recommend that you conduct yourself accordingly."
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Thin edge of the wedge
I think 2 things need to happen now:
1) The EFF needs to get involved on Github's behalf to push back at the MPAA or more similar requests will start arriving, possibly enventually killing off all open source sharing and development.
2) The individual projects now stored on Github should start putting pressure on the site demanding that it show some backbone or else they'll migrate elsewhere.
If we don't start standing up for our freedoms under the law, eventually the big corps and power mongers will take away all of them.
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