Slashdot Mirror
Gentoo Package Accused of Violating DMCA
cshields2 writes "A recent post to the Gentoo mirrors mailing list passes along a DMCA violation claim that one of the mirror admins recieved. Supposively their bot saw the words "Pac" and "Man" in the filename INFMapPacks123FULL-MAN.zip and assumed it was an illegal copy of PAC-MAN. The file is actually for Unreal Tournament Infiltration. This is comical in one sense, but to be read by a hosting company who does not know any better can be frightening. Has anyone else ran into this with good (or even bad) outcomes?"
The note is just to make sure that if the letter gets to the wrong recipient, that recipient cannot disseminate the information in the letter. It does not restrict the right of the intended recipient to do whatever they wish with the information in the letter.
NMG
E-mail is the property of the sender and receiver, and both have the right to do with the text as they see fit. Thus, posting it is legit.
Anyone who says otherwise is merely trying to utilize scare tactics.
The note is just to make sure that if the letter gets to the wrong recipient, that recipient cannot disseminate the information in the letter. It does not restrict the right of the intended recipient to do whatever they wish with the information in the letter.
NMG
What is this all about? They are trying to hide the fact that they are sending out these letters?
That's all standard boilerplate that is included in most any legally confidential communications. My mom is a shrink, and every fax she sends contains that text. It doesn't restrict the actions of the intended recipient. My mom's clients can still show the fax to anyone they please. It's so that if my mom sends it to a client, and someone else picks it up out of the fax machine, they aren't supposed to give it to all their friends. It's weak juju to indemnify the sender of lapses in confidentiality.
If they wanted to stop the intended recipient from spreading the message around... they couldn't, but they'd be much more threatening.
There are no trails. There are no trees out here.
Similar to the way people have salted web pages with phony email addresses to poison robots that scrape web pages for email addresses an effective way to poison the DMCA robots is to salt your web site with nonsense files with names the robots will pick up. There is a procedure for contesting DMCA take down notices. http://www.personal.utulsa.edu/~benjamin-chapman/c le/dmca_summary.htm
The note is just to make sure that if the letter gets to the wrong recipient, that recipient cannot disseminate the information in the letter.
I suppose that all depends on what country you live in. I have been seeing disclaimers like this on email quite a bit lately and I asked our legal department about them. They told me it depends on whether there is a pre-existing NDA between me (or the company I work for) and the sender (or the company they work for). If there is, then I must abide by the terms and conditions of that NDA. However, if there is no NDA in place and I receive information that I did not request or was not intended for me specifically, from a legal perspective I am free to do whatever I want with that information. I may be subject to ethical and moral restraints, but legally, I can act as I please.
So, if someone sends me confidential information by accident or their workstation is running the latest microsoft trojan and it sends me confidential information that was never intended for me, there is no legal requirement (here in Canada at least) for me to inform the sender about it or delete the message unless I choose to do so. I could also legally act on that information as well (e.g. buy/sell stocks based on the quarterly financial reports I received before they go public). Presumably, I could forward that information to other people and not be committing any crime, although I did not ask that question specifically, so take that part with a grain of salt.
The lawyers reminded me that it may not be ethical to do any of those things, but from a strictly legal perspective, I would have done nothing wrong.
*** Where are we going? And what's with this handbasket?
I seem to recall, from a post on yet another DMCA article here on slashdot, a lawyer (who was definitely not offering advice, naturally) saying that the "under penalty of perjury" part doesn't apply to the claim of copyright infringement. It applies, instead, to the assertion by the sender of the letter of said sender's right to represent the owner of the copyrighted material.
In fact, I believe that it was the interview with the IP lawyers from the DOJ...
So, you can't punish the company sending frivolous claims unless they don't have the right to be making silly claims about that particular material.
"Has anyone else ran into this with good (or even bad) outcomes?"
/. Interview withMichael O'Leary, Deputy Chief for Intellectual Property at the DoJ:
..." - by OWJones
Here's one example from earlier this month:
RIAA's scare tactics bound to backfire
We already saw this happen earlier this year, when the RIAA was forced to apologize to a Pennsylvania State University professor for sending him and dozens of other people legal warning saying that they were violating federal copyright law. The RIAA's automated program apparently confused two separate pieces of information--a legal MP3 file and a directory named "usher"--and concluded there was an illegal copy of a song by the musician Usher.
Also, from the
9) "... under penalty of perjury
In copyright law, 17 USC Section 512(c)(3)(vi) states that all notifications of copyright violations sent to ISPs must contain
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(emphasis mine).
Do you know of any cases in which the sender of an invalid takedown notice -- such as the RIAA claiming Penn State University Emeritus Professor Peter Usher's lecture on radio-selected quasars was, in fact, an mp3 from the musician Usher -- has been successfully charged with perjury? Or do you allow copyright holders some "fudge factor" with the perjury aspect, since
1. It was an mp3.
2. It did have the name of an RIAA-represented artist in the title, and
3. It was at a university.
If copyright holders are allowed leeway, can we expect to see similarly loose definitions of perjury creep into the legal system? If the police are looking for a "Caucasian male, age 50-60, bald, 200-225 pounds," can I testify in a court of law that the 18 year-old caucasian male with a ponytail, weighing 140-150 pounds, is in fact the suspect since he is, after all, a caucasian male?
I realize that's more than one question and that they're slightly loaded, but I'd appreciate any comments on how seriously the DoJ takes the perjury clause of the takedown notices.
O'Leary:
Your question raises an important point. We feel strongly that everyone should comply with the requirements of all laws. Legal process under the DMCA or any other provision of law should be undertaken with the utmost care and good faith. Failure to do so undermines the credibility and effectiveness of our legal system.
Having said that, it appears your interpretation of the language in 512 (c)(3)(vi) is in error. The phrase "under penalty of perjury," applies to the representation that the complaining party is authorized to act on behalf of the copyright owner. It does not apply to the accuracy of the information about the alleged infringement. Quoting federal district Judge Bates in Verizon v. RIAA, The DMCA also requires a person seeking a subpoena to state, under penalty of perjury, that he is authorized to act on behalf of the copyright owner, 257 F. Supp.2d 244, at 262. In other words, the perjury clause may be violated if you seek a DMCA subpoena without the authorization of the copyright owner.
We are unaware of any prosecutions for violating this provision of the DMCA at this time.
Mod Karma -1: I sed bad wurds. If I cep my mouf shut, I wud be at riyses.
Actually, from what I understand, the "under penalty of purjory" bit in the DMCA is that the lawyers submitting the notice are swearing that they are authorized by the Copyright holder to be doing it, NOT that they are swearing a given complaint is correct.
Personally I think the law should be changed to the later so we can prosecute these bone-heads as apropriate for using scripted code without real checks as to what they found.
This space for rent. All reasonable inquiries will be entertained at proprietors discretion.
As I mentioned in the list post, yes, this is silly and amusing, but it still has to be treated seriously. I met with our company lawyer yesterday (who is pretty well-versed in the DMCA, and hence has slightly less than glowing praise about it). The basic response of course is to reply, explaining that they are in error and to consider the matter closed.
While I would like nothing better than to go after these people for gross abuse of the legal system, my company, like many other companies, cannot justify the costs associated with going to court over something like this. This is why you should donate to an organization like the EFF, and tell them you are concerned about the DMCA and its effects.
(Standard IANAL disclaimer for the following:) Also, check out this form if you are a mirror provider. It deals specifically with the DMCA, but does not necessarily provide protection against, but it may help. It is intended for transit providers/datacenters (which we are), but from reading its defintion of a "service provider", mirror sites MAY (again, IANAL) qualify in the same respect.
It's for a court to decide, I guess, but personlly I feel that good-faith would require human supervision of a these systems.
On the other hand, maybe they do, and these are just ones that slip through. It's gotta be mind-numbing reviewing these things all day.
When AT&T forwarded that threat to me, they included a legal contact at the company to speak to about any questions, etc (I removed this before I posted to the gentoo mirrors list, including just the stuff the ESA sent to AT&T). I called him up and got the general idea that companies like AT&T see hundreds of these per day, most of them invalid, and just forward them to their customers out of courtesy. They never seem to actually disconnect service because of an automated threat.
It seems the only people these days that take the DMCA seriously are organizations like the ESA.
Still, good point.
that the company alleging infringement must do so under penalty of perjory
According to the DOJ lawyers who recently responded in a Slashdot Interview, the "penalty of perjury" clause applies to their representation as being an agent of someone, and not to the validity of the claim or allegation.
---- ---- --- -- --- ------ Keep Cool But Do Not Freeze
Quite frankly, this argument is (no offense) mostly hot air -- Obviously, you could (by your logic) run around claiming everyone is hiding something illegal in something else. It may be difficult to prove it isn't there (indeed, even if you knew "the encoding" you could argue that a different encoding might possibly have been used), but it would be impossible to prove that is there. The classic example: I could tell you that there is a race of little green men living on the far side of the moon, but they always remain hidden so we can never see them and if you try to find them, the will run away in their perfectly invisible spaceships. You can't tell me they don't exist, but how can I prove they do?
Q. What evidence do you have?
A. Ummm.... none. But theoretically.......
Good-bye
It seems the only people these days that take the DMCA seriously are organizations like the ESA.
While I'm glad you can shrug this off with a laugh, you've hit the nail on the head with that quote above. The thing is, the ESA aren't the only ones taking the DMCA seriously. The RIAA will soon be issuing over 1000 lawsuites against music sharers -- thanks in whole to information obtained via the DMCA. The problem is, what if they used the same techniques to find violators?
"The market alone cannot provide sufficient constraints on corporation's penchant to cause harm." -- Joel Bakan