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I'm an open-source contributor trying to share a repository that a company claims they own. They claim that parts of the project include information (let's call them magic numbers) that were reverse-engineered from their product and therefore the project is in violation of DMCA. The company sending the takedown notice is very large with lots of money, therefore, they have a very strong legal team on retainer. The reason the project is not in violation of DMCA is because the reverse-engineered "magic numbers" were only reversed for interoperability purposes, the project cannot work with the target product without these magic numbers.

Usually, I'd just send a counter-notice, however, this company has a very high reputation of just serving a civil lawsuit against anyone who counter-claims them, even if they're wrong. By wrong, I mean if we both had the same legal resources, you would most likely win the case. I'm in no position to challenge a multi-billion dollar company, but I feel as my code is being censored by a big corporation. I was wondering if there was anything I could do to release my code without getting sued.

  • This is not really a legal question - you can always get sued. There are no doubt you could release a different version of your code making it difficult to be tracked down and from a jurisdiction that does not bend over, and you can also put steps in place to limit the damage that can be done should they win. If the question is just one of "magic numbers" - why not change the code so people need to enter the magic numbers separately, and make sure those magic numbers are leaked. – davidgo May 26 '18 at 6:42
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You can't. You will be at significant risk of being sued.

As the website operator: If you challenge a DMCA takedown request then you lose your "safe harbour" rights and can become part of any copyright infringement lawsuit.

As the person or entity uploading contents that received a DMCA takedown request: The company issuing the takedown request can always sue you, whatever you do. Most (almost all) don't take action if the contents is removed, that's the idea behind the DMCA laws.

If you challenge the takedown notice, that means the company can only remove the contents by suing you. If removing the contents is important to them, and they are sure that it is their contents (many companies are a bit careless sending out DMCA notices because it's cheap, they would check more carefully before suing) then they will sue because that's the only way.

And (thanks to cpast) in your counter notice you must submit your contact information, or the website must not accept your counter notice. So if you tried to have protection by being anonymous, that protection will be gone.

  • In fact, one of the main points of the counter-notice process is to give them your information so that they can take it to court and let the court work out whether the use is infringing. If you think the use is fine and they think it's not, that's pretty much what courts are for. – cpast May 26 '18 at 18:44
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    Maybe I'm missing something, but I didn't see anywhere that the asker identifies themselves as the website operator? – David Z May 27 '18 at 5:09
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    The answer isn't intended only for the person asking the question. It's nice if it is useful for people in similar situations. – gnasher729 May 27 '18 at 14:11
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Technically they could sue you now, whether or not you send the counter-notice. After all, you have (according to them) already infringed their copyright. The DMCA protects the company that hosted (and took down) your code, not you.

I was wondering if there was anything I could do to release my code without getting sued.

I suppose you could sue them for a declaratory judgement of noninfringement - the fact that they sent a takedown gives you standing. But I don't think that helps you much if you're "in no position to challenge a multi-billion dollar company." Aside from that... there's really nothing you can do to stop them from suing you.

  • This looks like it would have the huge advantage of filing on your home turf. – Joshua Aug 14 '18 at 19:50
  • @Joshua Perhaps, but the company would likely have to sue you in your home state anyway - 28 USC 1391 and 1400 seem to indicate that venue is proper in the defendant's district. – D M Aug 15 '18 at 5:03

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