dmca/2020/12/2020-12-30-TolaData-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 the content owner.

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

I am an owner of the Github organization: github.com/hikaya-io. This includes being the owner of the repository that was a target of a takedown notice: https://github.com/hikaya-io/activity.

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

On December 7, 2020, I was notified via email that the following repository and all of its files were taken down: https://github.com/hikaya-io/activity.
A DMCA Takedown Notice was submitted and published to the Github DMCA repository found here: https://github.com/github/dmca/blob/master/2020/12/2020-12-04-TolaData.md

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?

I have read and understand GitHub's Guide to Filing a DMCA Counter Notice.

The submitted DMCA Takedown Notice found here: https://github.com/github/dmca/blob/master/2020/12/2020-12-04-TolaData.md states the reason for copyright infringement is because it violates the GNU GPL 2.0 license by switching licenses of the repository to the Apache License 2.0.

Below we provide the reason why this is incorrect and not the case:

1. The accuser is not the owner of the two repositories they have listed in the DMCA takedown notice submitted here. The owner of this repository: https://github.com/mercycorps/tola-activity is Mercy Corps and one of the owners of this repository: https://github.com/open-build/TolaActivity is [private] who is also one of the owners of the hikaya-io Github organization: https://github.com/hikaya-io.

I find it odd that the accuser did not list their own repository as the infringed repository since that is the only repository they are an owner of. The repository can be found here: https://github.com/toladata/TolaActivity. Looking further into their repository, it can be shown that the accuser’s own repository also has a commit that was made on June 23, 2017, to add the Apache License 2.0 to the repository. This is the same commit date as the repository in question and the committed file history can be shown here: https://github.com/toladata/TolaActivity/commit/fc64337#diff-c693279643b8cd5d248172d9c22cb7cf4ed163a3c98c8a3f69c2717edd3eacb7. Looking at this repository closer, it seems that any licenses in this repository have now been removed and there is no record of this repository having the GPL 2.0 License.

2. Source code in the infringed repository is not the same. The accusing party refers to the incorrect source code repository where this alleged copyright work was infringed upon. It states that the original repository was published here: https://github.com/mercycorps/tola-activity.

However, this is not accurate since if you compare the above source code with the alleged repository, one will find that it is not the same source code that our alleged repository is infringing upon.

The correct original source can be found here: https://github.com/mercycorps/toladata and here: https://github.com/mercycorps/TolaWorkflow, both repositories form the original source.

It is also mentioned explicitly on our website that this was originally created by Mercy Corps, the owner of the original source repository. Our acknowledgment can be found here: https://hikaya.io/index#content4-8.

3. The open source license was never changed. The alleged repository in question has had and continues to maintain the same license from its original source code that it was cloned from. The Apache License 2.0 is the same in the alleged repository as the original source:
   a. Alleged repository with infringing content with the Apache License 2.0: https://github.com/hikaya-io/Activity/blob/master/LICENSE
   b. Original repositories with the Apache License 2.0: https://github.com/mercycorps/toladata/blob/master/LICENSE and https://github.com/mercycorps/TolaWorkflow/blob/master/LICENSE
   It can be noted that the commit date for the License file of the original repository was June 23, 2017, and the same License file was created from the original repository afterward on Oct 19, 2018, in the alleged repository.

This shows that the license of the alleged repository was never changed from GPL 2.0 License to Apache License 2.0 as stated by the accusing party. It has always had Apache License 2.0, the same as the original source code.

4. The accusing party did not adhere to the guidelines outlined in Github’s DMCA takedown notice before submitting their complaint: https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-takedown-notice
   a. Tell the Truth: The accuser is not the content owner of the two repositories they have listed as being infringed upon (See point 1). They also failed to list the repository that they are a content owner of as the one being infringed upon. Investigating further, it is found that this repository they are a content owner of does show a file committed with the Apache License 2.0 similar to the alleged repository (See point 2). The accuser has provided a partial narrative and referenced the incorrect repositories in their reasoning that the GPL 2.0 License was violated and of a repository they are not a content owner of. The repository license was never changed and the original source can be verified to have the same license as the repository that was taken down (See point 3).
   b. Ask nicely first. The accusing party of the takedown notice has not once contacted the content owner of the alleged copyright work repository through the various communication channels established in the repository. This DMCA takedown notice is the first time that this information was made aware to the content owner of the alleged repository.

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:
Hikaya LLC
[private]
[private]

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

[private]