MPAA Stretches DMCA To Breaking Point With Questionable Take Down Request For Popcorn Time Repositories
from the stretch-stretch-stretching-the-law dept
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.