DMCA takedown notice for BackupHDDVD at SF.net

[noclip]

I just got a message from SourceForge informing me that they were issued a DMCA takedown notice for BackupHDDVD and have complied. I'm pretty sure BackupHDDVD doesn't violate much of anything so any info (NO legal advice) as to what exactly my options are would be much appreciated.

[Guest]

You have to host it yourself to avoid problems like this. Nobody wants to fight legal battles for you.

[MLS]

Can source code that circumvents copyright protection when compiled be considered a breach of the DMCA? Were there binaries hosted?

I wonder if this could be avoided by just hosting the source tree there.

Obviously my assumption is that source code on its own is merely text and cannot do anything that would be considered DMCA breaching.

Not that sourceforge wouldn't take it down anyway even if it wasn't under the DMCA's jurisdiction. I'm just curious.

/MLS

[cypher_soundz]

create a torrent, uplaod to http://www.megashares.com/, buy a rapidshare.com account and uplaod to it, (it will never expire and you get points per download ), share via p2p and paste magnet links / ed2k links.
purchase an off shore host , there are some cheap ones around

Regards
cyph

[NuMessiah]

Try developer.berlios.de (just like www.sf.net but in Europe). They are situated in Germany and I don't belive that DMCA is effective there.

German DMCA (EUCD) was already discussed in forums here and I think the circumvention prohibition is less strict there (read: more fair-use oriented).

[HyperHacker]

Originally Posted by cypher_soundz

buy a rapidshare.com account

Rapidshare is easily one of the worst web sites I've ever been to. Downloading from there is like having a tooth pulled. Tip: Free web page hosts (as opposed to free file hosts) are good for mirroring small files like this, as they tend to have a lot less restrictions and ads.

[Galileo2000]

Overall, www.sendspace.com has been great so far.



..On a different tune, SlySoft lets people download AnyDVD HD for $$$ from their website with no fear whatsoever.

Makes me think..Double standards?

[cypher_soundz]

i totally agree with you hyperhacker ... UNTIL i purchased an account now i must say they are the best thing around i max my connection and can download off RS all day and its cheap (IMHO). But even without an account this file is so small that waiting will be quick and it will not be big enough to exceed the bandwidth limit

The rapidshare points also is a plus, allowing each download to = more account time.

i forgot this is a small file, i agree your idea of free hosts is also good

Regards
cyph

[HyperHacker]

Originally Posted by cypher_soundz

this file is so small that waiting will be quick and it will not be big enough to exceed the bandwidth limit

In my experience the wait is at least 1:30 for any file, and when that time is up, I get an error message in German and have to press Back and try again which restarts the timer. After about 8-15 attempts I might be able to download the file, or I might be told I've exceeded my bandwidth limit even though I haven't used the site in months. Can I really trust these people to keep my credit card number secure when they can't even make something this simple work correctly? If something goes wrong with my payment, will I receive any support in English?

A quick glance at the source code reveals that the "download timer" is simply a Javascript timer counting down from a randomly determined value. You can use a filtering proxy to disable it and go to the download immediately with the same results. In other words, this wait serves no other purpose than to annoy you into buying an account while forcing you to look at the ads (and presumably allow more time for popups to spawn, I have popup blockers out the wazoo so I wouldn't know). Where is all the money from these ads going?

[Mr_Odwin]

Google offers a free hosting service via its pagecreator/googlepages service - just get a google account and then sign up for it.
Here's an example: http://favcfavc.googlepages.com/home
(The files linked to are actually hosted on my webspace, but you can upload files to google too.)

[linx05]

Originally Posted by Galileo2000

Overall, www.sendspace.com has been great so far.

Yes they are a great service. MUCH better than rapidshare. Then again, anything is better than rapidshare. God if anyone uploads to that site one more time I'm going to...

Originally Posted by Galileo2000

..On a different tune, SlySoft lets people download AnyDVD HD for $$$ from their website with no fear whatsoever.

Makes me think..Double standards?

They live in a country (Antigua) exempt from laws which would try to take them down.

Good luck noclip.

[blutach]

Not all that sure this has much to do with Decrypting (except peripherally).

Transferred to Geeral Discussion.

Regards

[Morbo]

www.mediafire.com

Another good one.

[Doom9]

Did they at least send you a copy of the notice? I wonder how they argue that backuphddvd infringes any copyrights - and of course who's behind it.

[moon1234]

This is less about "where" the potentially infringing code is hosted and more about where the person who "owns" the code lives. You could host the files on a server in sealand, but if you live in the US and the code is found to violate the DMCA, you still sunk. They have to find you, but there is always a way to do that.

I am sure this is more strong arm tactics. ISPs, especially sourceforge, don't want anything to do with even potential lawsuits. If the person is anonymous and can guarantee that they can not be tracked (use of offshore proxies 100% of the time in a country that does not have any connection or diplomatic relations with the US or the the EU) then you can pretty much have open communications.

Unfortunatly in todays world the US is no longer about the free exchange of ideas and more about big corporations using the legal system in place of a good DRM system.

All they would have needed to do was come up with a simple flashing system for the firmware on their devices so that in the case of a comprimised device code, a simple reflash of the device would fix the problem.

In any case ideas and methods should never be supressed in a free and open market. The free exchange of ideas is what made much of corporate america today. Now the media giants want to supress the free flow of ideas to maintain an outdated mode of collecting royalties.

I wish you luck in finding a place to host the code. I fear your only option to have "freedom" with this type of research is to host in a country that many of the free countries consider their enemies. My how far we have fallen.

[shevegen]

1) Its not only the USA, you know. Other countries follow with similar legislation, some blatantly copy, and some even are lobbied by US companies to implement even more rigid measures (they point out the DMCA covers it, even though it doesnt.) But its really the bigger companies that are to blame here, not just countries. I was often surprised how certain parts in countries can do really GOOD work while their government totally sucked/sucks, devotedly listening to the lobby of these companies and consortias

2) Well sourceforge probably didnt want to risk to have any proxy-problems,
ok so far, and I can perfectly understand why they use the DMCA to go against what they think its a break of the law (*cough cough fun time when company attorneys do less real work for law cases and more work writing cease and desist letters*). It would be nice to show the notice anyway....
However the right for fair-backups is totally abolish by protecting it with a law pushed by them, hunting down source code hosts.

I wonder how this can be put into effect? I still do not know of any law case that has effectively abolished the fair use clauses. How can the law that denies a user the right to make backup copies to prevent damage to the medium, stay in effect? It conflicts with consumer rights, and is more akin to an industry-dictated law state.

EDIT: Oops... i forgot... BackupHDDVD doesnt even REMOTELY have anything to do with "breaking copyright protection".
Where is the basis for the "legal" action (attempt) against sourceforge??

[Karyudo]

Originally Posted by moon1234

...big corporations using the legal system in place of a good DRM system.

Actually, that's precisely what should happen! There should be no DRM, and no stupid DMCA, but only lawsuits brought against real infringers of the existing (i.e. pre-DMCA) copyright laws. That would be fair and equitable.

The current system is stupid. To think that even the mere discussion of an idea of how a DRM system works can be made illegal -- or at least something that can't be discussed for fear of a lawsuit, whether valid or not!

[trodas]

I keep wondering how long we will be even permited to write own software...
With the way the Vista-crap is trying to enforce (eg. pay to have driver that works under Vista and at any given moment we could make it stop working...) it might be very soon gone.

Let's boycot these suxxkas!

[HyperHacker]

See this is why we need to fight DRM as much as possible. Check out sites like defectivebydesign.org (which has been pretty dead lately, but does some nice stuff) for ideas how. Of course the best thing you can do is vote with your wallet - don't buy products (or from companies) that support/use DRM.

[adam]

I'm not familiar with exactly what BackupHDDVD does. My understanding is that you must input keys and then it will decrypt the encrypted content. If this is the case, than according to the language of the DMCA it does sound like it is infringing. Section 1201(a) says that it is an infringement to "circumvent a technological measure." The phrase, "circumvent a technological measure" is defined as "descramb(ling) a scrambled work or decrypt(ing) an encrypted work, ... without the authority of the copyright owner." If BackupHDDVD does in fact decrypt encrypted content than per the DMCA it needs a license to do that.

I see the argument that the distribution of BackupHDDVD is only the source code so it can't be infringing. This isn't true. Under general copyright principles the source code is the most important part anyway, but more specifically the DMCA states that it is a violation to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that "is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure." It seems that even a useless portion of the source code could be infringing if you could determine that it is "part" of an infringing program.

I see the argument that Fair Use allows backups of DVDs and HD-DVDs/Blu-ray discs and therefore this type of decryption cannot be prohibited by the DMCA. This is a tough pill to swallow...I am sorry. But Fair Use does not allow personal backups in the United States (and it seems this DMCA take down notice is referencing US law.) There is no authority that has ever supported a Fair Use argument to backup DVDs and the Copyright Office has actually made its own ruling on this issue on three separate occasions, based on motions filed by consumers and consumer organizations. The jist of their ruling was that there is no existing authority for the argument, that the validity of any such argument would be viewed with skepticism, and that if such an exemption is ever created it will need to be implemented by Congress, just as was done with computer software and musical recordings (which can be backed up per specific statutes unrelated to Fair Use.)

Here is the exact language of the Copyright Register in their ruling. Please don't shoot the messenger. This is the only real authority on this issue in the US and it creates a very steep slope to overcome to win this issue on Fair Use grounds.

The proponents of this exemption desire to make backup copies of their DVDs for a variety of purposes: they claim that DVDs are inherently fragile and subject to damage; they are concerned about loss or theft of the original during travel; they wish to duplicate collections to avoid the burdens and risks of transporting DVDs; they assert that some titles are out of print and cannot be replaced in case of damage; and they claim that the duration of a DVD’s lifespan is limited.

The common denominator in all of the comments endorsing an exemption for DVDs appears to be the need to make backups of the original copy due to the alleged fragility of the medium. The question therefore becomes whether making a backup copy of a DVD is a noninfringing use.

The creation of a backup copy of a work implicates the reproduction right. While the Copyright Act contains an exception for the making of backup copies of computer programs in §117, it contains no comparable exemption for motion pictures and other audiovisual works. The proponents of an exemption bear the burden of proving that their intended use is a noninfringing one. No proponent has offered a fair use analysis or supporting authority which would allow the Register to consider such a basis for the exemption, and the Register is skeptical of the merits of such an argument.
DVDs, of course, are not indestructible. Neither were traditional phonograph records; nor are CDs, videotapes, paperback books, or any other medium in which copyrighted works may be distributed. The Register is not persuaded that proponents of this exemption have shown that DVDs are so susceptible to damage and deterioration that a convincing case could be made that the practice of making preventive backup copies of audiovisual works on DVDs should be noninfringing.
The proposed exemption is not simply to permit remedial measures for disks which become damaged, but rather to allow reproduction of the works as a precautionary measure. While an analogy might be made to the basis for the backup exemption for computer programs that was enacted in the days of corruptible floppy diskettes, there are important differences. Congress carefully addressed the §117 exemption for backups of computer programs with restrictive conditions. One day Congress may choose to consider a carefully tailored exception for backing up motion pictures if it is persuaded that one is necessary, but the Register sees no authority under current law that would justify an exemption to enable the making of backup copies of motion pictures on DVDs. Given the tremendous commercial appeal of the DVD format at a time when alternative analog formats still exist, it seems unlikely that now is the time. And while it may well be true that analog formats are headed for ultimate extinction, the market is already beginning to see evidence of alternative forms of digital delivery over the Internet. The decision to purchase a DVD format entails advantages and, perhaps, disadvantages for some. The purchase of a work in that particular format is not, at present, a necessity and DVDs are unlikely to become the only format in which motion pictures may be purchased. The record in this rulemaking does not establish that the potential for possible future harm to individual disks outweighs the potential harm to the market for or value of these works that would result if an exemption were granted. The unauthorized reproduction of DVDs is already a critical problem facing the motion picture industry. Creating an exemption to satisfy the concern that a DVD may become damaged would sanction widespread circumvention to facilitate reproduction for works that are currently functioning properly. As presented in this rulemaking, the exemption would be based on speculation of future failure. Even though certain copies of DVDs may be damaged, given the ready availability of replacements in the market at reasonable costs, on balance, an exemption is not warranted on the current record.

The opponents have provided strong evidence of the increasing popularity of the DVD format. The Register finds it difficult to imagine that a format that is fundamentally flawed would become so popular. Similarly, it is difficult to imagine how a business model of renting DVDs, which also appears to be thriving, could be viable if the medium were so fragile. Further, it is significant that the scope of the problem the proponents describe is limited to movies on DVDs and does not address other types of works which commonly employ DVDs, such as video games. All these facts lead to the conclusion that, on the current record, DVDs are not unusually subject to damage in the ordinary course of their use. To the extent that some commenters found it more convenient to travel with backups or keep backups of their works in multiple locations, e.g., vacation homes or cars, the prevention of such uses appears to represent an inconvenience rather than an adverse effect on noninfringing uses. Indeed, the Register is aware of no authority that such uses are noninfringing. To endorse such uses as noninfringing would be tantamount to sanctioning reproductions of all works in every physical location where a user would like to use the work, e.g., the purchase of one book would entitle the user to reproduce copies for multiple locations. Except where a case-by-case analysis reveals such reproduction to be noninfringing under §107 or some other specific exemption, such reproductions of convenience are infringing under the Copyright Act. Neither the fear of malfunction or damage nor the conveniences enabled by backups satisfy the requirement that the intended use be a noninfringing one.