Are you the owner of the content that has been disabled, or authorized to act on the owner's behalf?
I am an [Private] lawyer, duly empowered and acting upon instructions of my clients who are the subscribers of the GitHub repository and owners of the copyright of the material contained therein. I am acting therefore under their authority.
What files were taken down? Please provide URLs for each file, or if the entire repository, the repository's URL:
The entire repository has been taken down,
This include single resources within it whose taking down has also been demanded:
Do you want to make changes to your repository or do you want to dispute the notice?
My clients want to dispute the notice, for the following reasons.
Statement of subscribers' position:
The claimant has demanded the taking down of both the entire repository and of a project and of certain specific resources, namely, some issue tracking data and exchange. The demand is grossly overreaching and therefore unlawful.
There is not a single allegation, never mind any kind of evidence, direct or indirect, that the software contained in the main repository has been copied from – or results from decompilation of – the software whose copyright allegedly belongs to the complainant.
The identification of the material which is allegedly to be taken refers to "reverse engineered logs and images from my application".
Logs and images (we suspect screenshots) are all but the only content of the entire repository, which consists mostly of the original source code of my clients' application.
Therefore there is not a single reason why the entire repository should be taken down and we respectfully submit that the notice does not comply with the requirements of U.S. Code, Title 17, Section 512(3)(A)(iii) in parte qua.
We demand that the repository is taken back up, also considering the remainder of this counter-notice.
The parts which have duly been identified as infringing will be removed, despite there is no copyright infringement involved
For the part where the complainant has complied with his or her duty to identify the allegedly infringing subject matter, I have advised my clients to consent to the removal of the relevant content without prejudice.
Therefore, the following material will be removed (either by my clients' initiative as soon as they are able to access the repository, or by GitHub directly):
Why we believe that the identified material is not infringing
My clients would like to point out that the accusation of being copyright violators is inherently inaccurate and grossly defamatory, and reserve any rights to demand restoration of the damages this has caused to their image and to that of their project.
All the mentioned URLs point to the issue tracker, this is User Generated Content for which my clients benefit from the safe harbour provided them from EU Directive 2001/31/31 (as they are all EU citizens operating from the European Union) and which is somewhat modeled around the US DMCA.
When external users or occasional contributors of the project ask to implement features. In such case, it is common knowledge that "a picture is worth a thousand words" and sharing a screenshot to explain one person's desire looks completely normal to my clients. The normal course of action in these cases, if the alleged copyright holder believes that the content is unlawfully hosted, is to contact the hoster and demand taking down, as my clients are here evidently to be considered the hosting providers as per the applicable law. See further down.
The claimant writes (emphasis in the reply added):
Is the work licensed under an open source license? If so, which open source license? Are the allegedly infringing files being used under the open source license, or are they in violation of the license?
No, it's closed source and reverse engineering of my work or sharing images from my work is strictly forbidden.
My clients are not users of the claimant's application and are not bound to any of the contractual obligations that user undertake, only to copyright laws. Neither are my clients those who took and shared these images and have no way to ascertain that they are in violation of copyright, hence they have committed no infringement. It must also be highlighted that in no occasion the claimant approached the repository owners to ask for the removal of any image or other content, but instead they have decided to use this hypothetical infringement to demand the taking down of something that they probably consider as competition.
The claimant then proceeds (Emphasis to the reply added):
What would be the best solution for the alleged infringement? Are there specific changes the other person can make other than removal? No, the reverse engineered logs and images from my application must be removed ASAP.
It is unclear to us what the claimant mean with reverse engineered logs, but we proceed under the assumption that bluetooth logs is what the claimant considers offending: the Android operating system provides natively a functionality to save all the device bluetooth traffic to a file for later analysis. These logs contains merely the messages that are exchanged between android and other devices connected via bluetooth, no information about software emitting these messages is contained in the logs, hence we see no evidence of any possible "reverse engineering" of the claimant work.
Conversely, analyzing the logs is blatanty an user's right, as it is a right of a legitimate user in Europe – where those copies allegedly "reverse engineered" are also distributed and whose laws – to study how the application works. This is stated in EU Directive whereas clause 14 and 16
(14) A person having a right to use a computer program should not be prevented from performing acts necessary to observe, study or test the functioning of the program, provided that those acts do not infringe the copyright in the program. (16) Protection of computer programs under copyright laws should be without prejudice to the application, in appropriate cases, of other forms of protection. However, any contractual provisions contrary to the provisions of this Directive laid down in respect of decompilation or to the exceptions provided for by this Directive with regard to the making of a back-up copy or to observation, study or testing of the functioning of a program should be null and void.
And finally Art. 5.3
3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.
The logs are not copyrighted material, as they are facts recorded by the operating system as to the interaction between the operating system and the application. Therefore storing and sharing the logs is neither an act of reverse engineering, nor a direct copyright infringement.
We do not even have to mention that even decompiling the application would be a legitimate act, because no decompilation has ever occurred by the owner of the respository.
So, after having made clear that:
- the respondents have not shared, but rather received some screenshots of the claimant application in our issue tracker;
- respondents believe that according to all applicable laws the sharing of the aforementioned screenshots would anyway fall within "fair use";
- any user can save and share a bluetooth log from his android device, without any "reverse engineering" activity;
- the system bluetooth logs contain no information about any architecture or design of the app exchanging traffic with the underlying operating system;
- respondents for good measure consent to the removal of the allegedly infringing content which was identified by its own URL (as opposed to the general repository)
Demands and statements
We demand that public access to the repository be reinstated as a matter of urgency, then we will proceed to eliminate the content of:
I consent to receive all communication to my email (please redact before publication) [private]
My full name and address are (please redact them):
The name of the owner of the repository is:
I swear, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
[Private] consents to the jurisdiction of Federal District Court for the Northern District of California, and I will accept service of process from the person who provided the DMCA notification or an agent of such person.
I have read the Guide to Submitting a DMCA Counter Notice https://help.github.com/articles/guide-to-submitting-a-dmca-counter-notice/