Gitorious receives DMCA takedown notice from Sony

This morning Gitorious received a DMCA takedown notice from Sony. The notice addressed quite a few repositories on gitorious.org that are hosting various PS3 related code. Norwegian law commands us to respond to such notices by removing potentially copyright infringing content until it’s legality can be fully clarified.

For that reason, some of you have just now had your repositories removed from Gitorious – you should also have received an email explaining why.

Please note that the takedown notice also calls for Gitorious to disclose identities and private data about the users in question. According to our attorney we are not required under Norwegian law to provide such information, and will not comply to this part of the notice.

30 Comments

  1. Vincent
    Posted February 2, 2011 at 1:47 pm | Permalink

    Good job on keeping the private data to yourself. Good to know that our data is safe with you :)

  2. Posted February 2, 2011 at 2:21 pm | Permalink

    Plenty of mirrors still around of these files, there’s no putting the genie back in the bottle.

  3. ddenis
    Posted February 2, 2011 at 2:44 pm | Permalink

    Just out of curiosity – how is that possible that a DMCA take down notice coming from US have any effect on a company that operates in Norway? I am not familiar with Norwegian law or law of any country in the EU, but it sound pretty weird that a complain in one country can cause any actions in another country.

  4. James
    Posted February 2, 2011 at 2:52 pm | Permalink

    You should have stood up to Sony on this one. The code doesn’t actually violate copyright, just Sony claims that it induces/contributes to copyright infringement.
    I am surprised that you feel the need to comply with a US takedown notice. If you were in fact violating Norwegian law, why didn’t Sony state that after all, you are not a US entity.

  5. Marius Mathiesen
    Posted February 2, 2011 at 3:10 pm | Permalink

    @ddenis: You’re right, the DMCA is not applicable in Norway. There are, however, EU directives that are to some degree equivalent to the US laws, and these directives are implemented in Norwegian law.

    @James: The problem here is that we need to be certain that we are not publishing things that are in violation with Norwegian law; if we did we would be accountable for that. I don’t know the code in question, and I don’t know the legality of it.

    It is the responsability of the user uploading the code make sure it doesn’t violate Norwegian law, according to our terms of service; this was mentioned in the email we sent to the repository owners.

    If the content in question is not illegal according to Norwegian law, we will be happy to host it on gitorious.org.

  6. Posted February 2, 2011 at 3:19 pm | Permalink

    I agree with Marius – this really isn’t Gitorious’ fight. They have plenty to lose and nothing to gain by hosting these file, whereas there’s plenty out there with nothing to lose. I’m mirroring them as are thousands of others, Gitorious really don’t need to put themselves in the firing line on this.

  7. Posted February 2, 2011 at 5:34 pm | Permalink

    Hi,
    Here’s my answer to you :
    You say “If you can provide Gitorious with irrefutable evidence that this code is not violating neither Sony’s copyrights/patents nor Norwegian law”.

    We cannot refute a negative, they should be the ones to give evidence that the code is violating their copyright by pinpointing specific lines of code with specific laws. Without any details on what exactly is infringing, we have no way of refuting anything.
    They should give exact projects, exact filenames and exact lines of code that are infringing, as well as the exact copyrights/laws that are being infringed. Without that information, we cannot defend ourselves, we cannot simply start guessing and mount a case to defend every single line.
    For now, it all seems to be ‘we don’t like these projects, remove them and we’ll use DMCA as an excuse’.

    The only proof we can give at this point is : Their entire PS3 system is closed source, there never was any leak of any of their source code, so we couldn’t have copied any of their copyrighted source. Also, we are not distributing any binaries from their system.
    What else do you require ?

    Thank you.
    KaKaRoTo

  8. Gert
    Posted February 2, 2011 at 5:51 pm | Permalink

    “Norwegian law commands us to respond to such notices by removing potentially copyright infringing content until it’s legality can be fully clarified.”

    This is a lie, and you know it. At least your attorney does.

  9. Gert
    Posted February 2, 2011 at 5:58 pm | Permalink

    ddenis: The problematic bit is “The files also constitute circumvention programs, technologies, devices, services, or components because they circumvent SCEA’s PlayStation®3 computer entertainment system’s technological protection measures.

    It is illegal to distribute this kind of code i Norway by Norwegian legislation (Åndsverkloven § 51) This only applies to circumvention of protection of copyrighted material, but I guess some of the code does exactly that. (lvl2 patching or whatever.)

  10. Posted February 2, 2011 at 6:38 pm | Permalink

    Another spineless company kowtows to corporate demands! DMCA has exemptions for interoperability and compatibility (like running linux for example or even homebrew). People should start counter suing for spiteful litigation or whatever it is to throw meritless lawsuits against groups without the money to defend themselves so they fold. DMCA doesn’t even exist in Norway!

  11. Gert
    Posted February 2, 2011 at 6:53 pm | Permalink

    After reading the DMCA notice, I have this to say: Shame on you. They don’t include any specific information whatsoever! Here is a proper response for next time:

    Hi,

    We received your “DMCA notice.

    Firstly, be advised that U.S laws do not apply here. We have no DMCA. As you have clearly not written this letter with any understanding of Norwegian law, it is impossible for us to tell in what way you feel Norwegian laws are violated.

    We can not simply take down the repositories of our customers and users when you have not provided valid reasons for us to do so.

    We have great respect for copyright as incorporated in Norwegian law. If genuinely feel that Norwegian law is being violated by files shared by one of our users, please:

    Link directly to the file in question, and tell us which lines of code you feel violate your copyright after Norwegian law or other Norwegian law. Also tell us in what way the given lines of code are illegal to host.

    If it is a request about removing a binary file, a picture music or other non-text file, it is sufficient to demonstrate, by comparison, that the file is identical to another file or copyright protected work that you hold the rights to.

    I am sure you understand that we can not take any action against any users for no reason.

    Best regards,
    XXX

    Seriously, I can’t believe what cowards you are in this matter. You had NO obligation to take down those repositories based on that letter! This is fact, not opinion.

  12. djk
    Posted February 2, 2011 at 8:00 pm | Permalink

    Guilty until proven innocent?

  13. realyst
    Posted February 2, 2011 at 8:13 pm | Permalink

    If anything, this mainly just shows how reliable a repository gitorious is.

    I am not familiar with Norwegian law. But it certainly should not have been too much to ask for, as part of the takedown, a summary of which Norwegian law was broken in order to mount a counter argument or seek legal council. This is not only common courtesy but also common practice.

    Having not done so truly shows how an utterly unprofessional(or legally ignorant) attitude towards the care of their users’ content.

    I also sincerely hope the logical failing of the requested irrefutable proof of nonexistence is due to a language barrier. Otherwise, I would also seriously question the overall maturity and/or cognitive capability of whomever is in charge of user relations/legal issues.

    I will personally look elsewhere and would advise others to do the same.

  14. euss
    Posted February 2, 2011 at 8:57 pm | Permalink

    A notice claiming infringement is not the same as a determination of infringement.
    No proof nor reference to (local) applicable law was given, no Norwegian court order, no proof that any of the code is no longer in dispute.
    I see only see fair use is in place and Norwegian/EU laws apply. As such, imo a possible reply could be:

    “We received your DMCA notice,
    We are sorry, but at this time we cannot comply to the requests you’ve made. Last time we checked, Norwegian didn’t fall under Californian court jurisdiction and the United States or America did not incorporated the Kingdom of Norway as added province. Norwegian citizens visited America five centuries before Columbus and introduced Viking-law there, but we see no connection or liable proof that your request should be honored on our own national soil where civil law regulated by Courts of justice of Norway applies.”

  15. fagoatse
    Posted February 2, 2011 at 9:00 pm | Permalink

    I’m studying law at present and while I’m not familiar with norwegian law, I fail to see how those files break any law regulations. Every line of code seems to have been written from scratch by volunteers from all over the world, with the intent to share their vast knowledge on the PS3 system with others.
    What happend to our freedom in the internet?
    It reminds me of the wikileaks case – trying to shut down the source that reveals ones screw ups.
    What’s done is done. Sony, you’ll never get rid of it.

  16. euss
    Posted February 2, 2011 at 9:17 pm | Permalink

    btw a good read on applicable law, based on the Norwegian EUCD (an European version of DMCA) is on: http://www.indicare.org/tiki-read_article.php?articleId=111

  17. Gert
    Posted February 2, 2011 at 10:05 pm | Permalink

    I’d bet quite a few Norwegian Kroner that this is their first time with something like this. Still unbelievably unprofessional. Makes me wanna start a git server service myself. Any Norwegian hosting firms & someone with server admin experience up for it?

    I’d take legal resposibility. It would do wonders for my future career opportunities with a conviction on my head, but I promise I wouldn’t be THIS much of a coward.

  18. Frode
    Posted February 2, 2011 at 10:25 pm | Permalink

    Dette er ikke bra!!
    Ikke la Sony kjøre over dere på denne måten.
    En DMCA gjelder ikke i Norge.
    Sony tror de kan herse med alle bare for de er et stort firma!
    PS3’en min pensjoneres herved og XBOX’en kommer frem fra skapet igjen. Makan til barnslig oppførsel fra et firma jeg en gang var ganske glad i. Se på MS som faktisk prater med de som viser dem at de har “hull” i systemene sine for å lære. Nei Sony bare “saksøker” alle!

    Og forresten: Jeg har betalt for PS3’en min. Den er min! Jeg gjør hva jeg vil med den! Ferdig med den saken.
    Huff, jeg kjenner at jeg blir skikkelig sinna på hvordan de tror de “eier” alt og kan gjøre som de vil!

    @sony You have one customer less

  19. GitoriousUntrustwort
    Posted February 2, 2011 at 10:37 pm | Permalink

    The fact that you would get worried about sony threat is understandable at first, but if you are running this type of code hosting service, the possible issue of copyright infringement is part of the deal, and you have handled this in the worst possible way. At this point, unless you take Gert letter or equivalent, send it to sony, and restore subsequently the repo in question, you are just showing your service is not reliable, not trustworthy and shame yourselves.

  20. Posted February 3, 2011 at 1:36 am | Permalink

    The great thing with distributed version control is that the central “repository” services are only ever mirrors of what the developers all have anyway.

    I think it’s a good move for DVCS repository hosts to back down rather than make themselves a target – people shouldn’t be relying on one central location anyway.

    By the way, looks like gitorious’s competitors have experienced the same thing. https://github.com/geohot/ps3publictools is also well and truly dead.

  21. Dave
    Posted February 3, 2011 at 5:48 am | Permalink

    Sony has alot of power.They started the case againgst hotz,with false allegations to obtain a tro, and in the mean time they are intimidating everybody. Kakaroto sony wants you to acknowledge “criminal activity” So they do not want to provide evidence , they want you to do it for them. The audacity they want you to disclose personal data on everybody should if applicable be done by a court order……

  22. Janko
    Posted February 3, 2011 at 7:45 am | Permalink

    Regarding Sony’s request for disclosure of private data, not only you’re not required to do so, but rather it’s illegal under the Data protection act which has been instituted by pretty much all european countries. Gitorious, as a controller of your clients personal data is required to process such data only for purposes for which explicit consent has been given or there is statutory authority to do so. As you have no legal obligation to disclose said data and your clients haven’t consented to it, they would only need to file a complaint with the appropriate body if you do disclose the data (I’m sure Norway has some form of an Agency for Data protection). I assure you – said agencies are very aggressive in the pursue of legal actions.

  23. Lee Hambley
    Posted February 3, 2011 at 8:47 am | Permalink

    As far as all this rhetoric about Gitorious being cowards goes, as a couple have had the sense to say, this is about protecting the service, at no detriment to the users.

    It’s not in Gitorious’ interests to fight Sony over something it has nothing to do with. If, supposedly the content (under a liberal interpretation of the DCMA) should be taken down, until the legality of it can be proved, I think that’s fair.

    Remember the DCMA is designed to protect IP, and if IP spends too long in the public domain, then it can be duplicated, distributed and mirrored. In the spirit of the law, this move makes sense, and it says nothing about “Guilty until proven innocent”, it’s simply protecting IP (which is more important to big companies, than to a lot of us FOSS developers.)

    I’m glad Gitorious handled this the way they did, even though I’m a Github customer, I would hope most companies would behave this way… and it’s Git, so every, single person who has ever cloned this repository, has the whole history, and can continue working, and sharing, without Gitorious… will be be a little more difficult, probably… Does Torvalds and the Linux kernel team manage without a web-based hosting app… Yes.

    Good job Gitorious, I look forward to the blog post where you receive extensive damages once the code is deemed to be legal, for the damage to your reputation for having to bow to these assholes. With the PS3 having sold 41.6 million units (Wikipedia:ConsoleWars), a few hundred hackers wanting to free up their systems shouldn’t be a risk. And, I’m sure even Sony should be smart enough to know that most of the people into this software hacking aren’t in it for Game piracy. (At least, the last I heard this method was essentially useless for pirates)

  24. euss
    Posted February 3, 2011 at 9:48 am | Permalink

    @Lee Hambley

    Actually, if Sony cannot proved proof, the content of the original authors should be restored within 10-14 days (and I say original authors, because there isn’t a snip of Sony owned/written code in their content).

    http://bit.ly/gNOME2

    ^that is when DMCA applies, which in case of Norway doesn’t, because it a rather loose interpretation of EUCD, which allows lawfully circumvention, research, library/reference and backup/copying to more extend than DMCA ever did.

    See: http://www.euro-copyrights.org/index/17/65 and EFF website for more info.

  25. Christer Fjølstad
    Posted February 3, 2011 at 1:56 pm | Permalink

    http://forbrukerportalen.no/Artikler/2007/consumers_digital_rights

    Norsk lov sier da (punkt 5) at vi har lov til å modifisere konsollen vår.

  26. Gert
    Posted February 3, 2011 at 5:00 pm | Permalink

    Lee Hambley: We have no DCMA, so no matter how liberally you interpret it , it is utterly and completely irrelevant.

    The main porblem here is that you can’t, as Kakaroto said, refute a negative. How are the ps3 devs supposed to prove that they did the work themselves?

    It is the person asking to have code removed that should prove, or at LEAST TRY to prove that the code published is indeed infringing their IP.

    As we have seen in this case, Sony haven’t got a problem with blatantly lying – we see this in this very case. Thus, you can’t believe a over-genralized statemen saying “this ocde violates our IP”. They must, as a MINIMUM point to specific lines of code, for any norwegian host with any self respect what so ever to take action.

    We all (includig you) know that these tools are “all over the place” a long time ago. Hence there is no valid reason to take anything down BEFORE it is deemed illegal, or a court order has been issued.

  27. Posted February 3, 2011 at 6:49 pm | Permalink

    Well, I for one, is highly opposed to this ridiculous use of US law as a scaretactic, as I’m also very much opposed to the domain seizures going on in the US atm.

    However: does anyone know of, or have, the actual code in question? If anyone does, and can point me towards somewhere it can be downloaded, or mirrored, easily, I’ll be happy to put up yet another mirror (I’m not too knowledgeable on which sources are legit, hence I would like someone with a bit of knowledge to point me in the right direction) – DMCA, regardless of “EU directives” are NOT applicable in Norway – yes, they might use Norwegian law to ask that the site is taken offline, but actually making that case would be interesting, as we in Norway have one of the strongest consumer rights statements (by law) which opposes Sonys claims.

    Email, for inquiries about this, and the potential to put up another mirror: langbakk@gmail.com

  28. Herb
    Posted February 4, 2011 at 8:24 am | Permalink

    Isn’t gitorious ‘afraid’ of having their .org domain siezed like so many torrent trackers have had theirs for ‘distributing’ copyrighted or otherwise protected intellectual property?

  29. Marius Mathiesen
    Posted February 4, 2011 at 12:52 pm | Permalink

    @Herb: We’re adding a .no domain to our registered domains; we’ll be blogging about this once everything is set up.

  30. Posted February 7, 2012 at 6:23 am | Permalink

    They might use Norwegian law to ask that the site is taken offline.


6 Trackbacks

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