Techdirt Sued For $10 Million In A Frivolous Lawsuit For Posting An Earlier Frivolous Lawsuit

MPAA Stretches DMCA To Breaking Point With Questionable Take Down Request For Popcorn Time Repositories

from the stretch-stretch-stretching-the-law dept

Mon, Jul 14th 2014 9:57am — Mike Masnick

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:

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”).

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:

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.

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.

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:

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”).

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.

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.

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

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While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: dmca, intermediary liability, liability, popcorn time, takedown
Companies: github, mpaa

42 Comments

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Anonymous Coward, 14 Jul 2014 @ 10:11am

Dear GitHub Inc:

The Motion Picture Association of America, Inc. (“MPAA”) represents each of the major motion picture studios in the United States

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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Anonymous Coward, 14 Jul 2014 @ 10:15am

So, instead of using PopcornTIme as a model to innovate from (clean interface, easy to use, defraying bandwidth costs among multiple sources) they sue.

Way to innovate, MPAA.
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Anonymous Coward, 14 Jul 2014 @ 10:15am

Well, time for some popcorn.
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Anonymous Coward, 14 Jul 2014 @ 10:16am

That notice reads like:-
"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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Digger, 14 Jul 2014 @ 10:17am

MPAA/RIAA Lying sacks of shit
Nuke both organizations from orbit. It's the only way to be sure that both illegal entities will cease to exist and cease to be a cancer on modern society.
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Quiet Lurcker, 14 Jul 2014 @ 10:23am

Suggested Reply
I offer the following as a suggested reply.

Dear MPAA.

Thank you for bringing your concerns to our attention. We note, however, that you do not provide any evidence of copyright in the works to which you referred in your initial letter. Furthermore, our legal advisors indicate that there are substantial defenses available to us and to our members, under first amendment and copyright law, such defenses including but not being limited to safe harbor provisions and the fact that MPAA members do not claim copyright in any of the software hosted on Github.

We will gladly entertain a DMCA notice, when you produce at least prima-facie of an actionable copyright claim, as articulated under Twombly v. Bell Atlantic.

And of course, I'd include appropriate references.
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Ninja (profile), 14 Jul 2014 @ 10:30am

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

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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ChurchHatesTucker (profile), 14 Jul 2014 @ 10:32am

Re:
Problem is, they don't actually have services of their own.
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That Anonymous Coward (profile), 14 Jul 2014 @ 10:40am

Whoever has the most cash wins...
Its just like Congress, whoever has the biggest "contributions" wins even if its fscking stupid.
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Anonymous Coward, 14 Jul 2014 @ 10:47am

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.

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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jupiterkansas (profile), 14 Jul 2014 @ 10:48am

Re: Re:
They have Hulu.
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Ninja (profile), 14 Jul 2014 @ 10:50am

Re: Re: Re:
That service they have some participation but are actively trying to kill?
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Rikuo (profile), 14 Jul 2014 @ 10:51am

Re: Re: Re:
Yeah...Hulu...lemme try that...yep, as expected the "We don't let no damn furrenurs see our shows!" message. I could try a VPN, but that costs extra money and can slow down my internet connection.
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Ninja (profile), 14 Jul 2014 @ 10:51am

Re: Re:
Precisely.
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DOlz (profile), 14 Jul 2014 @ 10:59am

Re: MPAA/RIAA Lying sacks of shit
I don’t think that would wok. It has often been said that cockroaches would survive a nuclear war. The MPAA and RIAA have proven to be just as hardy and a lot more disgusting.
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Anonymous Anonymous Coward, 14 Jul 2014 @ 11:04am

Re: Re: MPAA/RIAA Lying sacks of shit
Reduce copyright to 7 years, with a registration and fee to renew it for another 7 years, or kill it entirely. Then they will have no reason to exist.
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John85851 (profile), 14 Jul 2014 @ 11:06am

Setting a precedent
I think the MPAA knows an action like this won't slow down development on GitHib, but it will set a precedent and allow the MPAA to stretch copyright laws every further.
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Violynne (profile), 14 Jul 2014 @ 11:46am

The MPAA reminds me of a person complaining of a headache, spending their time all day bashing their skull into a desk, hoping, one day, the desk will move.
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RD, 14 Jul 2014 @ 12:12pm

Re:
"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."

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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WDS (profile), 14 Jul 2014 @ 12:22pm

Counter Notice
I hope since Git-Hub elected to treat this non-DMCA notice as a DMCA notice, that the posters of the projects will file counter notices.

We really need a law with some teeth for abusing the DMCA process.
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Anonymous Coward, 14 Jul 2014 @ 12:50pm

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.

This is simply untrue. Clearly you've had a psychotic break with reality.
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Anonymous Coward, 14 Jul 2014 @ 1:11pm

This is the first time that open source code repositories have suffered 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?

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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John Fenderson (profile), 14 Jul 2014 @ 1:16pm

Re:
Since that is literally the argument they are making in their message to github, in what sense is the claim untrue?
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DannyB (profile), 14 Jul 2014 @ 1:32pm

Re:
You mean, it's Popcorn Time.
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DannyB (profile), 14 Jul 2014 @ 1:40pm

Re:
> Instead of trying to go legal [the MPAA] could, you know, LEARN something
> 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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Anonymous Coward, 14 Jul 2014 @ 1:50pm

Oooh, this app looks AWESOME. Thanks, MPAA for Streisand'ing this to my attention!
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DannyB (profile), 14 Jul 2014 @ 1:52pm

Re:
> This is the first time that open source code repositories have suffered
> 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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Gwiz (profile), 14 Jul 2014 @ 1:55pm

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.

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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Anonymous Coward, 14 Jul 2014 @ 2:35pm

Now the MAFIAA controls opensource software? Really?!
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Anonymous Coward, 14 Jul 2014 @ 2:51pm

Re:
With GIT, Github etc. are just convenient meeting and distribution points, but GIT will work in a fully distributed system, it is just easier for a project to progress, and gain followers if there is a central up to date version of the code for people to pull. While possible, it is harder to stay synchronized in a fully distributed system, because of multiple sources of changes.
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Anonymous Coward, 14 Jul 2014 @ 4:40pm

Re:
Since they had a huge success with Napster this time their results will be better. Sure.
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Anonymous Coward, 14 Jul 2014 @ 5:31pm

DMCA is being used to claim copyright on code the MAFIAA doesn't own. DMCA is being used to retard technological advancement of the human race.

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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Atkray (profile), 14 Jul 2014 @ 9:21pm

Re: Suggested Reply
"And of course, I'd include appropriate references."

And a nice rootkit.
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techflaws (profile), 14 Jul 2014 @ 10:13pm

Re:
Eng, is that you? If so, prove it by talking about dragons.
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Anonymous Coward, 14 Jul 2014 @ 11:56pm

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.

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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PaulT (profile), 14 Jul 2014 @ 11:58pm

Re: Re:
"The digital streaming services the MPAA blesses only serve US customers. (Try out Netflix, Amazon, Hulu.)"

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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PaulT (profile), 15 Jul 2014 @ 12:01am

Re:
I've never used it, but I suspect half of the "ease of use" people are talking about is not the software itself, but rather the range of catalogue available. Netflix's interface can often do with some refinement, but most complaints I hear tend to be that they can't find movie X, or that TV show Y disappeared halfway through them watching it.
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drewdad (profile), 15 Jul 2014 @ 5:31am

Thank you MPAA...
...for advertising this application. I'd never heard of it before.
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Spaceman Spiff (profile), 15 Jul 2014 @ 7:16am

No github for me
If Github won't stand up for their users/supporters, then they don't deserve to continue in existence. Shame on you Github!
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Postulator (profile), 15 Jul 2014 @ 9:31pm

What a very interesting precedent
"Dear Messrs Smith and Wesson,

"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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Rekrul, 16 Jul 2014 @ 5:35pm

Why does Techdirt's article not even mention the fact that Github folded like a house of cards and did the MPAA's bidding without even questioning the legality of it.
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KevinEHayden (profile), 17 Jul 2014 @ 7:28am

Thin edge of the wedge
This may be just the start. There are many other projects that can conceivably be used for 'copyright infringement' (Handbrake, VLC media player, etc.). What will happen now that Popcorn Time's removal has set a precedent?

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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