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I publicly uploaded a GPLv3 source code to GitLab, and they received a DMCA takedown for it. I think the complaining party may be the current copyright owner of (most of) the code, who is now extremely against having this particular software published.

I have not violated any terms of the GPLv3 since I got it, so I am a lawful licensee fully authorized to publish it. I would like to fight the DMCA notice, but my problem is that the instructions for counter notice says this:

To submit a counter notice, you must provide the following information: [...] Signature: An electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.

Well, I am not the copyright owner, nor a person authorized to act on the owner's behalf. But since I am a (non-exclusive) authorized licensee, can I be considered "owner" for DMCA counter-notices purpose?

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    Is there a way you can share more details with us? Currently we can only guess. There is a possibility, that someone ("Bob") took proprietary code of Alice who is the copyright owner, then Bob published that code under GPL without Alice's consent. Charlie (you) received the code, assuming it was rightfully published under GPL, and further distributes it. Alice does not like that and tries to stop Charlie by means of a DMCA takedown notice. This is just one hypothetical possibility, I have seen this kind of procedure before. Without fully knowing the background you might not want to fight it. Mar 22 at 16:02
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    That is not the case. The code in question is Yuzu, a well known multi year open-source development effort, whose the maintainers and owners of most of the copyright folded under a lawsuit from Nintendo. We don't know the specifics of the agreement, but Nintendo might now own Yuzu copyright. I forked Suyu on GitLab, which is a fork from Yuzu, and Nintendo DMCAd GitLab but didn't even claim copyright ownership, instead they claimed Section 1201, which I do believe to be bogus due to Sega v. Accolade, 977 F.2d 1510, Sony v. Connectix, 203 F.3d 596, etc. I.e. GPL is valid.
    – lvella
    Mar 22 at 16:29
  • Thank you for the addnl information and detail about the case. If this is a Section 1201 issue, then that element is outside of the scope of this site, you might need a lawyer for that. To me the real question is if GitLab is right in asking for a signature of the copyright owner, or if --in case of rightfully licensed GPL code-- any licensee should be in the position. But it is in GitLab's current procedures and by publishing there you have agreed to their terms. Mar 24 at 10:36
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    I too think Section 1201 stuff is out of scope, that is why I left that out of the original question. I am inclined to think the requirements are a simple mistake on GitLab's part, because that doesn't make much sense for a service that deals so profoundly with open-source as GitLab. Looks like the counter-notice "signature" requirements were copy pasted from the notice "signature" requirements. For the notice it makes much more sense.
    – lvella
    Mar 24 at 11:26

1 Answer 1

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GitLab has asked you for the wrong thing. The format of a counter-notification is specified in 17 USC 512(g)(3), which requires, among other things:

A physical or electronic signature of the subscriber.

"The subscriber" in this context refers to the person who originally uploaded the content (i.e. you personally). It has nothing to do with the copyright owner.

However, in the comments, you have indicated that the item in question is the Yuzu emulator. Yuzu has not previously been challenged under section 512 (as an unauthorized copy), but under section 1201 (as a circumvention technology), which is an entirely different provision of copyright law that is not subject to counter-notices (but, confusingly, is sometimes also referred to as "the DMCA" because it was enacted at the same time as section 512). If your clone of Yuzu was removed as a result of a section 1201 claim, GitLab can and probably will ignore any counter-notices.

GitLab should have provided you with a copy of the takedown notice, which should clearly identify the basis on which the notice was sent. If it alleges "that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," then it is a section 512 notice and may be counter-noticed. If it alleges that the repo can circumvent technologies which "effectively control access to a copyrighted work" (or any similar language), then it is a section 1201 notice and may not be counter-noticed.

Finally, please be aware that a section 512 counter-notice requires you to provide personally identifiable information sufficient for the complainant to file a copyright lawsuit against you, and to consent to the jurisdiction of the United States over such a lawsuit. You should be prepared to defend such a lawsuit before you file any counter-notice. It may be wise to consult a copyright attorney who is licensed to practice in the United States before proceeding.

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    in comments to the original question, the OP already stated 4 days ago that it is a Section 1201 issue. Mar 26 at 7:31
  • So, to be clear, DMCA allows for two different kinds of takedown notice: Section 512 and Section 1201 ? Why one allows for counter notice and the other don't?
    – lvella
    Mar 27 at 2:13
  • @lvella: If you just look at the law strictly as written, there is technically no such thing as a section 1201 notice. Nintendo would theoretically be within their rights to just sue GitLab immediately with no notice-and-takedown procedure at all. In practice, lawyers usually send demand letters before initiating litigation, because writing a letter is significantly cheaper than filing a lawsuit. This answer uses the term "section 1201 notice" to refer to a demand letter which is based on section 1201. 1/2
    – Kevin
    Mar 27 at 3:30
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    In theory, GitLab could decide not to honor the demand letter after receiving more information from you, but they would have to determine that they're willing to accept the legal risk, which is not a factor in section 512 cases (under that section, a service provider has a permanent safe harbor as long as they follow the notice-and-takedown process correctly, but there is no such safe harbor under section 1201). 2/2
    – Kevin
    Mar 27 at 3:33
  • The fact Nintendo used the format and procedure for Section 512, but then claimed Section 1201 is irrelevant?
    – lvella
    Mar 27 at 10:57

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