An update on the Sony DMCA issue

We have just sent an email to Sony’s legal attournes in reply to their DMCA takedown notice sent to us yesterday:

Re: Demand for removal of claimed copyright infringing content from Gitorious.org

This is in reply to your notification of United States Copyright Law Violations at Listed URLs, dated February 1st 2011. As we confirmed via email yesterday, the content was taken down from gitorious.org yesterday at 3.18PM CET.

Your claim made reference to US law, which is not applicable in Norway. When removing the content from our server placed in Norway, we did so to avoid being in violation with Norwegian law, to the degree that Norwegian and US copyright law is compatible.

However, it is unreasonable, and in conflict with basic legal principles, to assume someone as guilty until proven innocent. Allowing any third party to demand the removal of content on gitorious.org based on unproven claims of copyright infringement would assume any gitorious.org user would need to prove his innoncence under Norwegian law. This is unacceptable to us.

Our Infringement Notice Policy (http://en.gitorious.org/infringement_policy/) requires any Infringement Notice to include:

- An identification of the intellectual property right claimed to have  been infringed

Since your letter of yesterday contained no reference to Norwegian law we kindly ask that you prove that the content is in fact in violation of  Norwegian law. We will not act on further Infringement Notices related to this content until SCEA provides a Norwegian court order that deems the content in question as being in violation of Norwegian law.

Gitorious wants to make it absolutely clear that we have no agenda relating to the repositories in question. Our initial response to this notice was motivated by the fact that Gitorious could possibly be held accountable for not responding should this content be deemed illegal (with reference to “Ehandelsloven” §18). We object deeply to any violation of the basic legal principle of being innocent until proven guilty. This is why we have passed the ball back to Sony.

We hope you understand that it is not in Gitorious’, or the majority of its users’, best interest to pick this fight. We don’t have the resources nor necessary domain knowledge to assess the legality of all of our projects, which is why we have terms of service that state that users carry this responsibility.

16 Comments

  1. Posted February 3, 2011 at 2:09 pm | Permalink

    US Department of Homeland Security is apparently not afraid of seizing .ORG domains of foreign organisations that are behaving entirely legally in their own jurisdiction:

    http://www.techdirt.com/articles/20110201/10252412910/homeland-security-seizes-spanish-domain-name-that-had-already-been-declared-legal.shtml

    • Dave
      Posted February 4, 2011 at 5:13 am | Permalink

      There seems to be a big issue with “security”. Anything this days is falling on that term to accomplish anything including violating privilages and basic human rights. The voice of the internet is starting to fade,broadcasts are being “disappearing mysteriously” and content from the internet the same. Verizon and google are involved in this and what they are accomplishing is questionable. Anybody in the U.S with certain political ,religious beliefs are starting to be looked as a “threat” to the U.S.+\ Anybody investigating “fusion centers” know what I am talking about.

  2. Posted February 3, 2011 at 4:31 pm | Permalink

    I’m not sure about Norway, but here in Canada “innocent until proven guilty” only applies to criminal cases, whereas in civil disputes such as yours, the law only sides with the balance of evidence.

    • Posted February 3, 2011 at 4:49 pm | Permalink

      Ryan,

      Good point re: the differences between civil and criminal application of the law.

      However, the DMCA does provide for criminal penalties against violators…

      http://www.chillingeffects.org/anticircumvention/faq.cgi#QID124

    • Gert
      Posted February 3, 2011 at 5:12 pm | Permalink

      Ryan: Innocent until proven guilty is a perfectly good stand to take also in civil proceedings, with some modifications. You may have to prove your own innocence in civil cases, but only after someone else has proven (or at least made probable) that you have in fact done anything wrong. Sony saying “they violate our IP” without any further information is neither.

      I’m very you take this stand gitorious, the post you made yesterday was quite concerning.

      I don’t think anybody expects you to fight legal battles for your customers (at least I don’t), but I do expect you to notify the owner of the repositories in question so they have a chance to pick that fight themselves.

      Also, since these tools are all over the net already, I think you have little to fear from ekoml. § 18 b) – the possible exception being freshly released material not easily available elsewhere, and I can’t see a) applying here.

      Of course, the technical insight and understanding of a judge can never be under-estimated. :P

  3. Mark
    Posted February 3, 2011 at 11:34 pm | Permalink

    Way to go to kill your sites credibility, by playing bedroom kiddie hackers.

    Why would I host code here, when the owners don’t know right from wrong?

    Clearly hosting this pirate booty is wrong.

    • Mike
      Posted February 4, 2011 at 12:00 am | Permalink

      You’re statement is childish. You’re basing right and wrong on that of US Law. I hope you understand the US law applies only within the borders of the US.

      This adds to the credibility of Gitorious, if anything. They are maintaining a objective view of the law, and the content published to it’s servers.

    • Slynk
      Posted February 4, 2011 at 3:50 am | Permalink

      *sigh* I hate to see so many ignorant people who haven’t been involved in this whole affair commenting as though they know what they’re talking about.

      First, the code in question does not, and cannot be used for piracy. This is coming from a programmer whom has went through the fail0verflow code. Any code used for piracy was not developed by the fail0verflow team I assure you.

      Second, your trust in a giant corporation that claims they have rights to the console YOU purchased is frightening. Why would you assume Sony is in the right? You know that the majority of the advances in the PS3 hacking scene came from pissed off sony employees that released code and apps to the public right?

      Third, YOU don’t know right from wrong. There is NO copyright infringing code being hosted, go ahead and look through it yourself. The defendants haven’t even been brought to trial yet. Innocent until proven guilty, sound familiar? And while this MAY be a civil matter, Sony is claiming legal precedence based on criminal bases (violation of the digital millinium act).

      If you want someone to yell at, I DARE you to look into sony’s court documents that are FILLED with lies and half truths. I’m so sick of people blaming Fail0verflow and Geohot for shit they didn’t do. They stated OVER AND OVER that they didn’t support piracy. Geohot made a firmware in fact that you COULDN’T run pirated games. But you losers are whining away without researching the truth.

      • Posted February 4, 2011 at 5:28 am | Permalink

        @Slynk: I mostly agree with your postion but you have to keep in mind that media and especially the new media do work the other way round. We’re stuck in this information jungle.

        But it is not because of new media. People decades ago and nowadays researched information in the same way and with the same efforts. We get our information through media. I guess if you want to blame people for not researching, you should better blame the media because of not providing the truth. You can’t have everybody lookup every single headline of what is published, especially not double or even triple check it. If we’d start doing so we could suspend on working or living. If we don’t trust in what is told us, we should back away and let media better be vanished by tomorrow. We should teach media and responsible employees in this field to stick to the truth because in the long run tabloid and yellow press will cause severe damage to our social structures by such half-truths. It’s kind of a invisible hand process.

        What would be best is not to blame those who don’t know better but to start helping the flow of information to reach those we’d blame at first sight, so they could not get it wrong.

    • Posted February 8, 2011 at 4:29 am | Permalink

      I must agree with Mike, your statement is very childish and immature. Your ignorance in regard to these matters is all too apparent. “Bedroom kiddie hackers”…are you serious? I hope not, because if you are you have no business writing code here, or anywhere for that matter. I do not mean to sound callous or derogatory but you obviously have no idea what the truth is or which of the parties involved is to be faulted or in what manner.

      One of the repositories removed in response to the ludicrous and totally unfounded allegations by Sony belonged to my daughter and I. We have been monitoring, recording, and campaigning against the unethical, and often criminal business dealings of Sony far too long. We know exactly what they are about, we are active and vigilant. We make it our business to know theirs, and from where we sit, and have sat for over a year and a half now, the view is all too clear and all too ugly. While I must admit I have many interests at stake and a great deal of time, effort and resources invested in my own very personal “fight” against Sony, I am not so biased that I can no longer be objective. You would do well to take notes here Mark. It seems common sense and objectivity both have escaped you and your shallow, petty attempt to criticize others and the mock the owners of this site by feigning some sort of moral superiority leave no room to doubt.

      Furthermore, I must also admit that I share sentiment with Slynk as well…I too am wearied by the ignorance and brash mis-guided opinions of those outside the loop. Nothing wrong with being outside the loop, however don’t just stick your nose in and pop off like some ethical watch dog and I’ll tell you EXACTLY why.

      I don’t know what you do or what you are about Mark, I don’t know and honestly it does not matter to me. You have shown enough of your nature for me to know you are genuinely ignorant. You probably don’t know the truth, you are obviously not as informed as others, or myself may be in these matters. Again, you are not to be faulted or judged for that. Ignorance is something we all possess in various degrees and in various manners.

      However in this particular arena, on this particular battle field I am not ignorant of the weaponry or tactics being utilized by the various combatants. I can also empathize with those who are getting caught up in the chaos and confusion being generated and fueled primarily by Sony. Allow me be clear here…I have empathy, not sympathy.

      The “bedroom kiddie hackers” you refer to, and the now “dis-credited” Gitorious owners and administrators you so easily slander and degrade are all highly educated, dedicated, bright, productive and very talented people who have done NOTHING to deserve the treatment they are receiving. But even more importantly they are wise enough to recognize the truth when they see it, and because of that awareness…just because they know the truth…they feel an obligation to take a stand, and if need be, fight. Without concern for self, without self seeking motivations, for no other reason than the fact that it is the RIGHT thing to do!

      In one way or another, at some point, these people have all proven themselves to be upright, trustworthy, decent and in order. Geohot, fail0verflow, Hermes, my favorite dev KaKaRoTo, , ALL the Devs who have “pushed” any part of PS3 open source code, Mr. Mathiensen and Mr. Johansen here at Gitorious, all the hundreds and thousands of good people who I’ll never see or know, all of those who have took a stand against Sony, simlply because it was the right thing to do…they are giants, they are real life heroes, they are mt heroes…they are indeed “Freedom Fighters”.

      Yeah, “Freedom Fighters”…I borrowed that line from a statement KakaRoTo made to a young man, an MW2 player he did not know but felt the need to speak to regarding the damage being caused by lowlifes and cheaters calling themselves “hackers”. No sir Mark you are wrong….dead wrong. In this I’m sure, and because i’m sure I stand with them, proudly.

      Go post c0de somewhere else,
      d3m0n

  4. Dave
    Posted February 4, 2011 at 1:48 pm | Permalink

    Just a thought, Sony has the money, yet they are the pursuers. Seems to me that if sony is breaking the law in Norway can you guys actually file a civil suit(law suit) in Norway, They are telling you to disclose of “personal private Info” making you guys break”other applicable laws”. Theres a couple of people who are suing sony in the u.s for removing the O/S feature, I don’t know what it will become of this, Im in the U.S.

  5. kfcws
    Posted February 4, 2011 at 10:34 pm | Permalink

    Innocent UNLESS proven guilty.

    UNTIL implies it is only a matter of time for the guilt to be proved.

    UNLESS means it has to be proved else you are innocent.

  6. Marius Mathiesen
    Posted February 5, 2011 at 9:41 am | Permalink

    @kfcws: I agree with your objection, although Wikipedia uses the same words as we do in their definition of “Presumtion of innocence”: http://en.wikipedia.org/wiki/Presumption_of_innocence

  7. Dave
    Posted February 5, 2011 at 5:31 pm | Permalink

    Just had a little meeting with some of the guys. Looks like geo might be on the free,if sony oursues piracy because a hombrew that allows for a “sup dawg Geo does Homebrew” application is not enough. Seems as long as you guy are not profiting by any means,copy right infringement might not be enough either but again, did not study Norway laws…

    • Dave
      Posted February 9, 2011 at 1:14 pm | Permalink

      So my little info to LG made it, I am extremely happy. I am sick os sony running the show,Big company should not be trialed in the same state because of the influence they can have.

  8. Posted February 5, 2011 at 7:15 pm | Permalink

    In my own host http://www.mur3.com, i had put the files.

    Private server rulz!


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