MPA Suggests Github Could Be Held Liable For Popcorn Time’s Copyright Infringements

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The Motion Picture Association is pressing on with its mission to restrict the availability of infamous streaming app Popcorn Time. In a copyright complaint filed with Github, the Hollywood group cites the Grokster decision, suggesting that the code platform could be held liable for Popcorn Time's activities. Meanwhile, Popcorn Time's operators have filed a counter-complaint.

As the organization heading up the major Hollywood studios and more recently Netflix, the Motion Picture Association is continually engaged in a battle to prevent infringing content reaching the masses.

The job is both massive and diverse, from filing lawsuits against allegedly-infringing sites and services to filing millions of DMCA notices to have content disappeared from search engines. Somewhere in the middle sits the latest effort to disrupt the activities of the world-famous Popcorn Time app.

As the so-called ‘Netflix For Pirates’, Popcorn Time needs little introduction. Starting out as a single project, it has now spread into multiple forks, each taking a variant of the project in a slightly different direction under various development teams. At least in some cases and to a certain extent, that development takes place on Github, the code repository owned by Microsoft.

Given its size, Github receives relatively few copyright complaints but when it does, they mostly target specific content that directly infringes someone’s copyrights, i.e an exact copy of someone’s code or leaked databases, for example. However, a notice just filed by the MPA takes a slightly different approach.

The complaint, filed under the DMCA, is dated May 1, 2020, begins by referencing an earlier complaint filed by the MPA on March 21, 2020, of which there is no obvious record on Github’s site. In this new and amended form, the MPA requests Github’s “assistance” to deal with the “extensive copyright infringement of motion pictures and television programs that is occurring by virtue of the operation and further development of the Popcorn Time repositories…”

The complaint targets two URLs, one containing a repository for the Popcorn desktop application and another concerned with its API. An exhibit, which hasn’t been published by Github, reportedly contains screenshots of “copyrighted works” (movies and TV shows) that are owned or controlled by the MPA and are “being infringed by the project.”

“Exhibit A is provided as a representative sample of the infringements being committed as a result of the operation of the Project and to demonstrate the readily apparent nature of the massive infringement occurring via the Project,” the complaint reads.

“The list is not intended to suggest that the identified infringements are the only ones occurring via the Project. Having been informed, through the representative examples, of the nature and scope of infringements occurring through the Project, we hope that you will act appropriately to address all infringement by the Project, not merely the identified representative examples.”

This is where things start to get a little more complex. The MPA isn’t claiming that the code carried on Github is their work and in direct breach of their copyright (the MPA didn’t write the code and has no direct claim over it in that sense) but that the code as developed enables people who download software that infringes the copyrights of its members.

Specifically, the MPA highlights four modules in the repositories (image below), which are designed to utilize the features of other third-party sites (including torrent platforms) thereby presenting links to infringing content in the Popcorn Time software, when it is run on a user’s machine.

“[T]he attached file tilted ‘GitHub-Code’ which shows code hosted on GitHub that provides links to pirate sites, pirate APIs, and pirate torrent trackers used to access infringing copies of motion pictures and television shows that are scraped by the Popcorn Time app to provide access to the infringing content that users are looking for.

“The identified files and code are preconfigured to find and provide infringing copies of our Members’ film and tv content to Popcorn Time users in violation of copyright law,” the MPA’s complaint reads.

Requesting Github’s “immediate assistance” in stopping its customer’s “unauthorized activity”, the MPA then cites a specific element of the DMCA, namely 17 U.S.C. § 512(c)(3)(A)(ii). This is a reference to the requirement that for a complaint to be processed, the complainant should identify the copyrighted work that has been infringed or, in the case that multiple works have been infringed, provide a “representative list of such works at that site.”

This is interesting because not only does the MPA hold no copyrights in respect of the actual copyright code inside Popcorn Time, none of the movies or TV shows listed by the MPA are present in the Github repositories listed in the complaint. The MPA also asks Github to consider its repeat infringer policy in respect of Popcorn Time but then cites another area of law that can raise a sweat under the right circumstances.

“Moreover, the Project in question hosts software that is distributed and used to infringe on the MPA Member Studios’ copyrights. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913, 940 n.13 (2005) (‘the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe’),” the group adds.

The Grokster decision was handed down in 2005 (pdf) by the United States Supreme Court and held that Grokster and Streamcast (the maker of the Morpheus P2P software) could be sued for inducing copyright infringement.

Whether Github (the distributor in this case) “intends or encourages” the use of Popcorn Time for infringing purposes could be a matter for intense debate but given that it’s now clearly on notice of what the software does and how it achieves its goals, Github has taken the decision (clearly after discussion with the MPA, given the ‘amended’ nature of the current complaint) to remove the Popcorn Time repositories in question.

The MPA previously filed a similar complaint with Github over the Popcorn-like software TeaTV, which resulted in that repository being taken down. That too was actioned following discussion with the MPA, with Github seemingly having offered the movie group “guidance” on how to structure its complaint.

But while TeaTV went down without a fight, Popcorn Time has already indicated a willingness to fight back. In a counter-complaint filed with Github last night, a Popcorn Time representative contests the notice on the grounds that the MPA owns none of the team’s code.

“Yes, I am the content owner. All code are owned by Popcorn Time Team as you can see commits,” it reads.

“[We want to] dispute the notice. The code is 100 % ours and do not contain any copyright material please check again [sic].”

As a result of this counter-complaint, the Popcorn Time team has now consented to the jurisdiction of either the Federal District Court for wherever they are located (unlikely to be in the United States) or the Northern District of California where GitHub is located, should the matter escalate.

For now, however, the repositories are down and it seems unlikely that Github will reinstate them, at least to their standing before the takedown.

The MPA’s complaint and the counter-complaint from Popcorn Time can be found here and here

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