Prior to Whatsapp's $19B acquisition by Facebook, the company sent a large number of spurious takedowns against projects on Github. In a DMCA notice served by Whatsapp's General Counsel to Github, a number of projects are targeted for removal on the basis that they are "content that infringes on WhatsApp Inc.'s copyrights and trademarks."
This is grossly improper. DMCA takedown notices never apply to alleged trademark violations (it's called the "Digital Millennium Copyright Act" and not the "Digital Millennium Trademark Act"). Using DMCA notices to pursue trademark infringements isn't protecting your interests -- it's using barratry-like tactics to scare and bully third parties into participating in illegitimate censorship.
The letter goes on to demand takedown of these Github projects on the basis that they constitute "unauthorized use of WhatsApp APIs, software, and/or services" -- again, this is not a copyright issue, and it is improper to ask Github to police the code its hosts on this basis. It is certainly not the sort of activity that the DMCA's takedown procedure exists to police.
So what about copyright infringement? In the related Hacker News thread, a number of the projects' authors weigh in on the censorship, making persuasive cases that they software did not infringe on any of Whatsapp's copyrights -- rather, these were tools that made use of the Whatsapp API, were proof-of-concept security tools for Whatsapp, or, in one case, merely contained the string "whatsapp" in its sourcecode.
There may well have been some legitimately infringing material on Github, but it's clear that Whatsapp's General Counsel did not actually limit her or his request to this material. Instead, the company deliberately overreached the bounds of the DMCA, with total indifference to the rights of other copyright holders -- the creators of the software they improperly had removed.
Unfortunately, there are no real penalties for this sort of abuse. Which is a shame, because Whatsapp has $19B in the bank that a smart lawyer who wanted to represent the aggrieved parties could certainly take a chunk out of.Next post