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dmca/2016/2016-03-16-MPAA.md

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MOTION PICTURE ASSOCIATION OF AMERICA, INC.
15301 VENTURA BOULEVARD, BUILDING E
SHERMAN OAKS, CALIFORNIA 91403

[private]

PHONE: [private]
E-MAIL: [private]

VIA E-MAIL

GitHub, Inc.
Attn: DMCA takedown
88 Colin P Kelly Jr St
San Francisco, CA 94107
copyright@github.com

February 29, 2016

Re: Notice of Infringement for https://github.com/popcorn-official/popcorn-desktop

Dear GitHub, Inc.:

Thank you for your response to our notice letter dated February 18, 2016. We understand that our prior notice may not have met each and every requirement of your DMCA takedown policy. However, we do not believe that this should be the end of the inquiry or the end of GitHub’s responsibility. As you know, GitHub’s Terms of Service explicitly states that its services may not be used for any illegal or unauthorized service, including, but not limited to, violation of copyright and trademark laws. See https://help.github.com/articles/github-terms-of-service/. And as we have notified you in our prior notice letter, the GitHub project in question (popcorn-desktop, and hereinafter the “Project”) is openly using your platform to further copyright infringement. We hope you agree that GitHub’s responsibility to not knowingly assist in a massive copyright infringement operation does not end with its DMCA policy.

To summarize our prior letter on this issue, the operation and further development of the Project is contributing to massive infringement of copyrights in motion pictures and television programs. See https://github.com/popcorn-official/popcorn-desktop. There are multiple “forks” of Popcorn Time, all of which are 100% unlicensed and infringing, and many of which have been subject to litigation and court orders around the world confirming their infringement. Popcorntime.sh is one of the more recent infringing “forks,” and we attached several specific examples of that site’s infringement to our prior letter. The Project provides to any member of the public the software needed to develop and release additional infringing Popcorn Time forks, and thereby enables infringement on a massive scale.

None of these facts are contested in your response. Accordingly, we can only assume that GitHub is in agreement that (i) Popcorn Time (including popcorntime.sh) is internationally known as an illicit enterprise dedicated to facilitating online copyright infringement; (ii) the Project hosted on GitHub is designed to allow an unlimited number of users to fulfill the unlawful purpose of Popcorn Time (massive copyright infringement), and (iii) our prior letter provided you with notice of this massive infringement on popcorntime.sh, including by attaching screenshots of specific works being infringed.

Rather than dispute any of these facts – and if GitHub does dispute any of them, please let us know in your response – your letter requests “a list of URLs to any files that configure the project to access infringing material, as well as any specific files or sections of source code that you allege contain infringing material or could be used to locate infringing material.” As is apparent from even a cursory review of the Project (and popcorntime.sh), literally all of the Project’s source code “could be used to locate infringing material”—in fact, this is its very purpose. This is confirmed beyond any reasonable doubt by the Project’s inclusion of code referencing APIs that are specifically designed to locate, provide subtitles for and play infringing television shows and motion pictures in Popcorn Time forks—for example, the “providers” folder (https://github.com/popcorn-official/popcorn-desktop/tree/master/src/app/lib/providers) contains these three APIs:

• https://github.com/popcorn-official/popcorn-desktop/blob/master/src/app/lib/providers/tvshowtime.js

• https://github.com/popcorn-official/popcorn-desktop/blob/master/src/app/lib/providers/ysubs.js

• https://github.com/popcorn-official/popcorn-desktop/blob/master/src/app/lib/providers/tvapi.js

In sum, the Project provides the necessary “nuts and bolts” to create new Popcorn Time forks such as popcorntime.sh—whose sole purpose is copyright infringement.

By this second notification, we are asking again that you remove or disable access to the infringing Project’s repositories and all related forks in accordance with either 17 U.S.C. § 512(c)(3)(A)(ii) (DMCA “representative list” provision), 17 U.S.C. § 512(i)(1)(A) (DMCA “repeat infringer” provision), GitHub’s Terms of Service (which prohibit use of your facilities for copyright infringement), and/or based on Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 940 n.13 (2005) (“the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe”). At a minimum, we would hope that GitHub will follow the express terms of its own Terms of Service.

We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPAA Member Studios in the manner occurring via the Project is not authorized by the copyright owners, their agents, or the law. The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPAA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein. This letter is without prejudice to the rights and remedies of the MPAA Member Studios and their affiliates, all of which are expressly reserved.

If you have any questions, please contact me by telephone at [private], or via email at [private].

Regards,

[private]

MOTION PICTURE ASSOCIATION OF AMERICA, INC.
15301 VENTURA BOULEVARD, BUILDING E
SHERMAN OAKS, CALIFORNIA 91403

[private]

PHONE: [private]
E-MAIL: [private]

VIA E-MAIL

GitHub, Inc.
Attn: [private] GitHub Support
88 Colin P Kelly Jr St
San Francisco, CA 94107
copyright@github.com

March 9, 2016

Re: Notice of Infringement for https://github.com/popcorn-official/popcorn-desktop

Dear [private]:

Thank you for your response and your willingness to take action against https://github.com/popcorn-official/popcorn-desktop.

To clarify up-front, our prior notice letters refer to the DMCA and request removal of popcorn-desktop based, in part, on the DMCA’s representative list and/or repeat infringer provisions, but they were not limited to the DMCA. As we confirmed before, and as you undoubtedly know, the entire Popcorn Time project is 100% unlicensed and infringing – indeed, it was created and distributed expressly for copyright infringement, and has been used overwhelmingly for precisely that purpose. Accordingly, in addition to the DMCA, popcorn-desktop violates GitHub’s own Terms of Service (precluding use of its platform for copyright infringement), as well as the Supreme Court’s decision in Grokster (confirming that “the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe”). Accordingly, we repeat our request that you remove the entirety of popcorn-desktop.

If, however, you are only willing to consider GitHub’s obligations under the DMCA (and ignore its broader obligations under its own Terms of Service and under U.S. copyright law as confirmed by the Supreme Court), in response to your request for further identification of other “parts of the project that configure it to infringe,” in addition to the urls identified on our prior correspondence, we identify the following additional parts that are most clearly and unambiguously designed to find and deliver infringing content to end-users:

We are providing this notice based on our good faith belief that the use of motion pictures and television programs owned by the MPAA Member Studios in the manner occurring via popcorn-desktop is not authorized by the copyright owners, their agents, or the law. The information in this notification is accurate and, under penalty of perjury, we are authorized to act on behalf of the MPAA Member Studios, which own or control exclusive rights under copyright that are being infringed in the manner described herein. This letter is without prejudice to the rights and remedies of the MPAA Member Studios and their affiliates, all of which are expressly reserved.

If you have any questions, please contact me by telephone at [private], or via email at [private].

Regards,

[private]