German Court Says CEO Of Open Source Company Liable For 'Illegal' Functions Submitted By Community

from the unclear-on-the-concept dept

We just had an article mentioning that Germany has a ridiculous (and dangerously anti-innovation) view towards secondary liability, in which the country's courts often default to making third parties liable for actions they did not do. We noted that a court in Stuttgart had decided that the Wikimedia Foundation could be held liable for content submitted by a community member on the site, though only after the organization was alerted to the content (which still has significant problems for what are hopefully obvious reasons).

And now it appears that a court in Hamburg has gone even further, saying that the CEO of Appwork, a company that offers the open source JDownloader software can be held personally liable for "illegal" code that was submitted by an anonymous programmer, and which automatically showed up in the nightly build of the JDownloader 2 beta (not the officially released product). The code in question allowed JDownloader to record certain copy-protect streams, violating an anti-circumvention law. Appwork made it clear that it had no idea the functionality had been added, that anyone can contribute to the source and that it goes out automatically in the nightly build of the beta. Furthermore, the company carefully reviews the code and features of any official releases, and would have blocked such functionality from appearing in that code. All of this would lead most people to realize that it's crazy to blame Appwork (and even crazier to blame the CEO).

But not the court, apparently. The court relied on the bizarre argument that since Appwork offers the product commercially, that makes it automatically liable for anything that appears in the open source beta. Basically, such a ruling will make it exceptionally difficult to have a commercial open source product in Germany, since you could face liability if someone contributes code that somehow is considered illegal. If these kinds of secondary liability rulings keep cropping up in Germany, the hot startup scene in Berlin may realize that the country's outdated laws make it quite difficult to do anything all that innovative, especially if it involves any contributions from outside the company. Given how important community contributions are these days, that cuts off a huge amount of internet innovation from the German market.

Filed Under: germany, hamburg, jdownloader, jdownloader2, open source software, secondary liability
Companies: appwork

Warner Bros. Admits To Issuing Bogus Takedowns; Gloats To Court How There's Nothing Anyone Can Do About That

from the too-bad,-suckers dept

One of the bizarre side notes to Hollywood's big lawsuit against the cyberlocker Hotfile was a countersuit against Warner Bros. by Hotfile, for using the easy takedown tool that Hotfile had provided, to take down a variety of content that was (a) non-infringing and (b) had nothing to do with Warner Bros. at all (i.e., the company did not hold the copyright on those files). In that case, WB admitted that it filed a bunch of false takedowns, but said it was no big deal because it was all done by a computer. Of course, it then came out that at least one work was taken down by a WB employee, and that employee had done so on purpose, annoyed that JDownloader could help possible infringers download more quickly.

As we've noted many times in the past, there is almost no real punishment for filing false takedowns. The "penalty of perjury" language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent -- and not whether the file is infringing at all, or even whether or not the file's copyright is held by the party being represented. And, in the lawsuit, Warner Bros. is relying on that to try to avoid getting hit with a perjury claim. Basically, the company is saying: sure, sure, we lied and pulled down content we had no right to pull down, but the law is so laughably weak and in our favor that screw you all, it doesn't matter what we take down. While WB actually did "agree" to a more strict perjury clause in agreeing to Hotfile's terms, it's now arguing that the terms it agreed to don't count because they're different from the DMCA:

Hotfile first argues that the language on its website substantially complied with the DMCA and because Warner “was not the owner or authorized by the owner of the materials to issue the takedown notices,” its takedown notices contained false statements under penalty of perjury. Opp. at 3. But Hotfile’s argument is a sleight of hand that would transform every mistaken notice sent to Hotfile into a false statement under penalty of perjury. The sender of a takedown notice who mistakes a file for an infringing copy of its work is never the “owner or authorized by the owner” of what the file actually is. But the DMCA expressly does not require the sender of a notice to certify under penalty of perjury that they have correctly identified the complained-of file as one of their works. A takedown notice’s “[i]dentification of the copyrighted work claimed to have been infringed” is not made under penalty of perjury. 17 U.S.C. § 512(c)(3)(A)(ii). A statement under penalty of perjury, under the DMCA, applies only to the claim to represent the copyright owner of the specific right alleged to be infringed, i.e. instances in which a copyrighted work is identified by a notice and the issuer falsely claims to be the representative entitled to take down the work so identified. See 17 U.S.C. § 512(c)(3)(A)(vi). Hotfile makes no accusation, and has no evidence, that Warner ever falsely claimed to be acting on behalf of the true copyright owners of the files it accidentally took down (e.g., that Warner, instead of misidentifying files as its own, ever identified them as the works of other copyright owners, but then claimed to represent those other owners).

On the legal analysis, Warner Bros. may actually be correct here -- but it only serves to highlight how weak and ineffectual the DMCA 512(f) is, in that it's basically impossible to punish anyone who ever takes down legitimate content with a bogus takedown. As you read the filing, WB appears to be almost gloating that the way copyright law is written, it can take down whatever it wants, and if you don't like it, well, go shove the DMCA up your... and good luck.

If ever there was evidence that there needs to be real teeth behind punishment for filing bogus DMCA notices, it seems like this case should be exhibit number one.

Filed Under: 512(f), 512f, dmca, jdownloader, perjury, takedowns
Companies: hotfile, warner bros.