Re: DMCA takedown notice

From: mikeeusa
Date: Tue Mar 05 2019 - 21:20:13 EST

My publishing of these notices on my long-held sourceforge account,
along side the download link is sufficient for a reasonable person
to conclude that I, the author of the program, am the issuer of the

This is the very spot that the John Doe has obtained the work.

Secondly it is my exclusive right, as the copyright holder, to control
the distribution of the work as I see fit, and to control the creation
and distribution of derivatives of the work.

I have chosen to do so in rescinding the license of the John Doe.

An exclusive right of mine has been violated by the John Doe subsequently,
and with notice of the revocation.

A license, that is not supported by an interest, is revocable in the
United States of America. An interest attaches when a licensee pays
the copyright holder for the receipt of a license, or transmits valuable
bargained-for consideration to the copyright holder. Absent such an attached
interest there exists only a revocable-at-will bare license.

Here the John Doe did neither, and does not hold an attached interest
with which to bind me to any supposed promise. Any such promise is illusory.

Additionally, the acknowledgement and assent regarding a per-existing
legal duty is not valid consideration.

The url you link to advances a false legal theory unsupported under US Jurisprudence.

In the Artifex v Hancom cited by proponents of the "GPL is a contract (and always a contract)" view much is made of this proclamation by the lower court in the 9th circuit:
>"Not so. The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license."

This is patently false. The GPL contains no such language, The offer to do business on the plaintiff's website (regarding the Artifex case) DOES contain such language The court conflates that language into "the GPL" in this case. The GPL, in fact, declares the the user does not have to agree to any of it's terms.

I invite you to consult this learned treatise:
In addition to ENFORCING THE GNU GPL by Sapna Kumar (page 16)
Legal Implications of Open-Source Software by David McGowan, Professor of Law, University of Minnesota Law School:

All of which explain in concise terms, easily understandable by the lay person, why the GPL is revocable from non-paying licensees.

I am an attorney, and I reiterate my demands.

On 2019-02-20 20:10, GitHub Staff wrote:
Hi MikeeUSA,

Unfortunately, a pen name does not suffice when used in combination
with a disposable email address. Whether under the definition in 15
U.S.C 7006(5) which you cited, or as used in the DMCA, an electronic
signature needs to be associated with a person, as that term is
defined by 15 U.S.C. 7006(8). A psuedonym, without other information
that would allow us to associate that with a specific, identifiable
person, does not meet 17 U.S.C. 512(3)(a)(i)'s requirement that it be
signed by an authorized person. As a practical matter, this is
especially necessary where, as you claim, an account that may not be
you is posting content using that same pseudonym.

Even if that were not so, your notice would still be incomplete in two
other ways.

First, it lacks "information reasonably sufficient to permit the
service provider to contact the complaining party," as you've used a
disposable email address and provided no other contact information
that would be sufficient to assure we can contact the complaining
party. This type of reliable contact information is required by 17
U.S.C. 512(3)(a)(iv).

Second, your notice does not appear to identify material which
infringes on any exclusive rights in the original work. Both your
source code and the repositories you identified are published under
GPL licenses. You have not identified any way in which those
repositories violate the GPL, and without more detail we cannot
determine how redistributing or modifying GPL-licensed code would
constitute infringing activity. While GitHub is not in a position to
provide you with legal advice, here is an informative link about the
irrevocability of GPL licenses:

Once you've revised your notice to include the required details,
please send back the entire revised notice, and not only the corrected
sections. Once we've received a complete and actionable notice, we
will process it expeditiously.


GitHub Staff