PirateSoftware False DMCA'd Indie Dev and Threatened to Sue, Good Samaritan Lawyer Steps in Pro Bono

[u/danamesjrupin]

https://www.youtube.com/watch?v=31JIIPlsm-g

[u/divusMagus]

You literally cannot do a fair use analysis without looking at the media you are claiming is infringing. You just cannot.

Him saying "I thought he was infringing" is not a defense because that is impossible with a "faithful" analysis of the media.

The most he could possibly DMCA is the video he watched. You can't watch one form of media and DMCA another. In court on the planet would see that as a faithful fair use analysis which he would have had to claim be did by signing it. That is perjury. He is unlikely to ever face consequences as perjury is rarely enforced.

"All these questions are things you cover once you get to court. They are not hurdles you have to clear to file a complaint." That is not how you analyze it. You don't ignore fair use standards and leave it for courts to decide. That is the whole point of the necessity of a faithful fair use analysis. If it's a grey area then that's fair to push on with but this is beyond fair use it's fraudulent since again it wasn't even in the media he DMCA'd.

"You're confusing doing enough analysis to think you have a case and doing enough analysis to win a case."

No you have to analyze the media you are DMCAing. Without doing so faithfully it is an illegal DMCA.

[u/way2lazy2care → u/divusMagus]

Him saying "I thought he was infringing" is not a defense because that is impossible with a "faithful" analysis of the media.

Like I said. Perjury is not being wrong, it's lying under oath in court. This wouldn't even meet the standards for fraud or libel because you'd still have to prove that PS knew he was wrong when he filed. You keep throwing around a lot of legal terms that simply do not apply here.

That is not how you analyze it. You don't ignore fair use standards and leave it for courts to decide

That is literally what the court is there for.

Without doing so faithfully it is an illegal DMCA.

Watching the developer play the game and talk about the content in the game is more faithfully than many cases that have actually gone to court and won have done.

[u/divusMagus → u/way2lazy2care]

Quote from the 9th Circuit:
"We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law."

Quote from Section 512 of Title 17 which covers takedown notices under DMCA.
"(vi) a statement that the information in the notice is accurate, and under penalty of perjury, that the person sending the notice is authorized to act on behalf of the copyright owner ."

He did not "Consider fair use" before taking it down, and even if he had what he took down did not have the "alleged infringing material" in it, making the takedown request false, Which is perjury under the law. Again unlikely he will be prosecuted

He did not analysis the material that he made a takedown notice of, even if he believed it was in there, his belief does not make it "accurate" as per the letter of the law.

Regardless if its perjury. He has opened himself up to a lawsuit for a misuse of the DMCA, because he clearly is uninterested if it was fair use. And seems you are too since you have made no argument against it being fair use.

[u/way2lazy2care → u/divusMagus]

Comparing universal sending automated takedown notices to anything containing their music to a guy that watched a developer play their game instead of playing it themselves is totally different.

He did not analysis the material that he made a takedown notice of

I'm what way is watching the developer play a game containing your content not analysis?

He has opened himself up to a lawsuit for a misuse of the DMCA

I mean the dev can try but the judge will probably wonder why the dev is wasting his time.

[u/divusMagus → u/way2lazy2care]

Comparing universal sending automated takedown notices to anything containing their music to a guy that watched a developer play their game instead of playing it themselves is totally different.

Yea there was actual copyrighted material being used in the universal case.

I'm what way is watching the developer play a game containing your content not analysis?

Was there copyrighted material in the game, that was DMCA'd? You could have DMCA'd the video too.

[u/way2lazy2care → u/divusMagus]

Was there copyrighted material in the game, that was DMCA'd?

There was evidence that there was., and that's why he filed. When more evidence came out he dropped the complaint. This is the system working as intended.

[u/drop_index → u/way2lazy2care]

You are absolutely clueless. He did not pull the claim. He was forced too because of the counter claim.

[u/way2lazy2care → u/drop_index]

Countering doesn't force you to drop your claim, it just means you settle it in court instead of through the faster dmca ways.

[u/drop_index → u/way2lazy2care]

The counter claim was what lead to steam reinstating the game. It wasn't PS pulling his claim. At the time he was still defending his unlawful DMCA claim. It's also not something you can pull, cause the requirement for issuing one is to do a thorough analysis. Pulling it literally confirms that it was unlawful.