Released back in 2015, the Fuckr desktop application provides controversial enhanced access to the popular Grindr dating service.
Among other things, Fuckr gives Grindr users the ability to precisely locate hundreds of other users while revealing usually hidden information such as photos, HIV status, and even preferred sexual positions.
Early September, Grindr hit Fuckr with a DMCA notice, targeted at its official Github repository. Fuckr was taken down by Github but perhaps surprisingly, its developer ‘tomlandia’ chose to fight back.
Responding with a DMCA counter-notice, ‘tomlandia’ denied Grindr’s assertion that Fuckr “facilitate[s] unauthorized access to the Grindr app by circumventing Grindr’s access controls” and refuting that it circumvents “a technological measure that effectively controls access to a work” protected under the Copyright Act.
Github policy determines that this counter-notice would trigger the reinstatement of Fuckr within 14 days but as highlighted in our earlier article, it also opened up a can of worms for both Grindr and ‘tomlandia’.
If Grindr wanted to keep the tool down it would have to sue ‘tomlandia’ in the United States, meaning that an expensive legal process would ensue. It would be a put-up-or-shut-up moment for both parties, but with Grindr clearly having the most resources, the experience would probably prove financially uncomfortable for ‘tomlandia’ at best and potentially ruinous if a court eventually ruled against him.
It now transpires that ‘tomlandia’ wants no part in this kind of war. Probably recognizing the impossible situation he finds himself in, the developer has now backed away. In a fresh communication with Github, ‘tomlandia’ suggests that having his software reinstated on Github isn’t a big enough prize to warrant a fight with Grindr’s lawyers.
“I wish to retract my DMCA counter notice concerning my repository tomlandia/fuckr,” he writes.
“While I don’t believe my code infringes Grindr LLC’s copyright in any way, I am no longer willing to face legal action in a foreign court simply to keep this project hosted on Github.”
There are a couple of interesting pieces of information in the retraction, not least the suggestion that ‘tomlandia’ isn’t located in the United States. Being sued in a foreign court is rarely fun and never cheap, so financial considerations certainly played a part in this withdrawal.
Perhaps more importantly, however, is that ‘tomlandia’ still maintains that his software creation does not infringe on Grindr’s copyrights in any way. Of course, this is the kind of thing that would need to be determined by a court, which brings us back to the potential David versus Goliath battle that ‘tomlandia’ is trying to avoid.
The situation is certainly interesting, since it raises important questions about the nature of the DMCA.
While copyright holders often complain about the law’s ineffectiveness, DMCA takedown notices (when filed against sites like Github) wield considerable power. They have the ability to neutralize allegedly infringing content almost immediately but if targets dare to dispute the notice, they immediately sign up to an expensive legal battle.
This situation may be tolerable if both parties are healthy corporations but when a company like Grindr targets a Github developer, the former is almost certainly in a position to outgun the latter. Put simply, unless you’re prepared to lose everything, fighting one of these cases is completely out of the question for most people.
We’ll probably never know if Fuckr was indeed infringing Grindr’s copyrights but due to the way the DMCA works, victory, in this case, has been determined by those with the deepest pockets. And all they had to do was send a single email to Github and let fear do the rest.
