Are you the copyright owner or authorized to act on the copyright owner's behalf?
Yes, I am authorized to act on the copyright owner's behalf.
Please provide a detailed description of the original copyrighted work that has allegedly been infringed. If possible, include a URL to where it is posted online.
I represent Electric Sheep Fencing LLC ("ESF"), which maintains the pfSense software, including pfSense 2.4.3 and subsequent versions. ESF also owns U.S. and internationally registered trademarks to PFSENSE and PFSENSE CERTIFIED. pfSense® software is a free, open source customized distribution of FreeBSD specifically tailored for use as a firewall and router that is entirely managed via web interface.
More information about pfSense is available here: https://www.pfsense.org/about-pfsense/
pfSense 2.4.3 may be found here:
https://github.com/pfsense/pfsense/tree/RELENG_2_4_3
The main repository for pfSense is located here: http://www.pfsense.org
What files should be taken down? Please provide URLs for each file, or if the entire repository, the repository's URL:
These two commits:
https://github.com/doktornotor/pfsense-closedsource/commit/5dcf46578e259d3518535a4b4979e7fe495e730f
https://github.com/doktornotor/pfsense-closedsource/commit/5dcf46578e2
And these URLs:
https://github.com/doktornotor/pfsense-closedsource/tree/master/patches
https://github.com/doktornotor/pfsense-closedsource/blob/master/patches/kill-copynotice-spam.diff
https://github.com/doktornotor/pfsense-closedsource/blob/master/patches/README.md
https://github.com/doktornotor/pfsense-closedsource/blob/master/README.md
https://github.com/doktornotor/pfsense-closedsource/blob/master/patches/kill-uniqueid.diff
Have you searched for any forks of the allegedly infringing files or repositories? Each fork is a distinct repository and must be identified separately if you believe it is infringing and wish to have it taken down.
Yes, we have searched for forks, but are not aware of any relevant forks of the infringing repo on Github.
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?
pfSense is open source and distributed under the Apache 2.0 license.
By installing the pfSense software, users accept the pfSense Trademark Usage Guidelines as well as their obligations under the Apache 2.0 license. This is presented in a popup for copyright management information, upon install.
The change made in doktornotor’s repo suppresses that popup, in violation of the Copyright Act, 17 U.S.C. section 1202.
Section 1202 of the copyright act states, with respect to copyright management information, as follows (most relevant portions highlighted in red):
(b) Removal or Alteration of Copyright Management Information.—No person shall, without the authority of the copyright owner or the law—
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
(c) Definition.—As used in this section, the term “copyright management information” means any of the following information conveyed in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work:
(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=17-USC-440191787-1986812384&term_occur=20&term_src=title:17:chapter:12:section:1202, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=17-USC-440191787-1986812384&term_occur=21&term_src=title:17:chapter:12:section:1202, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
In other words, Doktornotor is providing information and a “patch” to prevent the copyright management information from appearing through the popup that users see when they install the software. This is in violation of the Copyright Act. The files that provide information about the suppression of that popup are violating section 1202 of the Copyright Act, the owner’s copyright rights (as well as Github’s own policies and terms, as mentioned previously).
What would be the best solution for the alleged infringement? Are there specific changes the other person can make other than removal?
The entire repo should be removed for the following reasons.
- The third party (doktornotor) has done this before:
https://github.com/doktornotor/pfsense-closedsource/commit/e9c6a85f291080bbdd24154b52d8465650da1e97
- As doktornotor indicates, "the only purpose of this repository is to document the false advertising of the so-called "open-source" pfSense®™ project."
You can see them both here:
-
By preventing the popup, doktornotor is intentionally removing copyright management information in breach of 17 U.S.C. § 1202. Removing this suppression is necessary to remedy the breach of § 1202. In other words, doktornotor is intentionally providing a patch to allow users to circumvent access controls in violation of U.S. copyright law, and he should not be allowed to continue to do so.
-
As noted above, the first two complained-of commits also state as follows:
“Kill Netgate copyright/trademark spam - pfSense 2.4.3+ version Kill a new variant of this idiocy coming with 2.4.3+”
The README.md in the “pfsense-closedsource” repo contains this statement:
“In case someone naively thinks that https://github.com/pfsense/FreeBSD-src contains the pfSense®™ source code - that is not the case. You cannot build pfSense®™ 2.4.x from source code. No, not even with the official toolshttps://github.com/pfsense/pfsense/tree/master/tools - those will just sabotage you. The repository claimed to be "FreeBSD src with pfSense changes" does not contain the source code of the kernel shipped with pfSense®™ 2.4.x, and other changes done to FreeBSD code are also being selectively ommited from that repository.”
These comments indicate that Doktornotor is intentionally removing the copyright management information in violation of the Copyright Act, resulting in an infringement of the owner’s exclusive rights under the copyright act.
In light of the foregoing, the entire repo should be deleted.
Do you have the alleged infringer's contact information? If so, please provide it:
The third party who is circumventing the access controls is [private], who goes by "doktornotor":
https://github.com/doktornotor
[private]
Type (or copy and paste) the following statement: "I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by the copyright owner, or its agent, or the law. I have taken fair use into consideration."
I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by the copyright owner, or its agent, or the law. I have taken fair use into consideration.
Type (or copy and paste) the following statement: "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed."
I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
Please confirm that you have you have read our Guide to Submitting a DMCA Takedown Notice:https://help.github.com/articles/guide-to-submitting-a-dmca-takedown-notice/
I have read your Guide to Submitting a DMCA Takedown Notice at the site indicated.
So that we can get back to you, please provide either your telephone number or physical address:
[private]
Meyertons, Hood, Kivlin, Kowert & Goetzel, P.C.
1120 S. Capital of Texas Hwy.
Building 2, Suite 300
Austin, Texas 78746
Telephone: [private]
Facsimile: [private]
Please type your full legal name below to sign this request:
/[private]/