dmca/2019/10/2019-10-03-nintendo-2-counternotice.md

Are you the owner of the content that has been disabled, or authorized to act on the owner’s behalf?

Yes, I am authorized to act on the content owner's behalf.

Please describe the nature of your content ownership or authorization to act on the owner's behalf.

I am part of the group of people who own the content in question.

What files were taken down? Please provide URLs for each file, or if the entire repository, the repository’s URL.

https://github.com/Flipnote-Collective/flipnote-studio-3d-docs
https://github.com/Flipnote-Collective/flipnote-studio-docs
https://github.com/Flipnote-Collective/kwz-parser

Do you want to make changes to your repository or do you want to dispute the notice?

Dispute the notice.

Is there anything else you think we should know about why you believe the material was removed as a result of a mistake?

A DMCA request is only valid if it has come from somebody authorized to act on the content owner's behalf. We have strong reason to believe that this isn't the case, and that we are in fact being targeted by a "copyright troll".

This is based on the following:

1. We previously received a DMCA takedown notice (https://github.com/github/dmca/blob/master/2019/09/2019-09-04-Nintendo.md) targeting projects under the "KaeruTeam" Github organisation, which happens to share many members with the "Flipnote-Collective" Github organisation and is similar in scope. This previous notice was poorly written and included legally void psuedo-legalease phrases. Our previous counter-notice (https://github.com/github/dmca/blob/master/2019/09/2019-09-10-nintendo-counternotice.md) noted many such issues as the reasons why we believed that notice was void. The new DMCA takedown notice (https://github.com/github/dmca/blob/master/2019/09/2019-09-27-nintendo-2.md) appears to be more genuine on the surface, but we think this is only because the author has read our previous counter-notice and used it as a guideline to avoid making the same mistakes. Unfortunately for them, there are still numerous legal and grammatical mistakes in the new notice which indicate that it is from the same author and is therefore not genuine.

2. As was the case with the last DMCA notice, the author has failed to list relevant registration numbers for the copyrights in question, just the titles "Flipnote Studio 3D" and "Miiverse". Presumably the author is either incapable of comprehending the concept of registration numbers or does not possess the ability to find them.

3. The author states that "[we are] infringing Nintendo of America Inc.'s private code for the product(s) known as Flipnote Studio 3D and Miiverse.", yet the projects in question i) do not include any of Nintendo's private code, and ii) do not have any relation to "Miiverse".

4. The author states that "these three entire repositories relate to the unauthorized recreation of Nintendo's Flipnote Gallery: World and Nintendo's Flipnote Hatena." despite the fact that i) these repositories are not related with the recreation of these services; they simply provide technical documentation about them, and ii) Nintendo is not the property owner of Flipnote Hatena; Flipnote Hatena was owned and operated by Hatena Co., Ltd.

5. The author states that "[they] believe that the Flipnote Collective is in violation of Section 103(f) of the Digital Millennium Copyright Act (DMCA)" and "it is also often lawful to reverse-engineer an artifact or process as long as it is obtained legitimately however the Flipnote Collective did not get their files legitimately or with permission of Nintendo of America Inc.", however i) the projects in question do not use any "files" owned by Nintendo; they were created using legitimate reverse-engineering techniques, and ii) the claimant cites no evidence to support their claim that we acted unlawfully, thus iii) we are not in breach of section 103 of the DMCA since it is lawful to reverse-engineer an artifact or process as long as it is obtained legitimately, as the author so helpfully states themselves.

6. Elements of the contact information provided in the unredacted DMCA takedown notice are either incorrect, fake, or taken from Nintendo's customer-facing website. We were able to confirm that the name given did not belong to anyone from Nintendo of America's legal department.

Finally, we'd like to remind the author of these fraudulent of these DMCA takedown notices that misrepresenting Nintendo of America Inc. puts them under penalty of perjury, and if successfully sued then they are liable for any costs. As paragraph 512(f) of the Digital Millennium Copyright Act states:

"Any person who knowingly materially misrepresents under [17 U.S.C. § 512] that material or activity is infringing … shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer…who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing….”

We have notified Nintendo's legal team and have also opened an abuse ticket with Github.

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.

I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located (if in the United States, otherwise the Northern District of California where GitHub is located), and I will accept service of process from the person who provided the DMCA notification or an agent of such person.

Please confirm that you have you have read our Guide to Submitting a DMCA Counter Notice.

So that the complaining party can get back to you, please provide both your telephone number and physical address.

Phone Number: [private]
Address: [private]

Please type your full legal name below to sign this request.

[private]