Honor Among Thieves: The Tonymacx86 hypocrisy becomes a story
Well, this was unexpected. The very last post here has garnered me a “DMCA” takedown notice from an unspecified “Tonymacx86 legal”.
Why all the scare quotes, you ask? Because the message I received isn’t worth the bytes used to compose it.
I’d assume receiving such a notice would be rather intimidating. But… well, let’s just have a look shall we?
Subject: DMCA Take Down Notice
From: ModBot
To: tk@tkware.info
Cc: team team@tonymacx86.com(my name and actual home address)
Sir,
You are in violation of DMCA by posting the source code to UniBeast which is copyrighted by tonymacx86 LLC and is documented on line 8 in the content in question. This content along with any modified versions of UniBeast must be immediately removed from your site and any other site or server that you have shared this content with.
Failure to comply with this notice will require us to take further action.
This communication and it’s content is confidential. As such, this content may not be disclosed outside of this email or any future communications by either party.
Sincerely,
tonymacx86 LLC Legal
Sounds pretty bad.
However, it seems the folks behind “tonymacx86 LLC Legal” seem to be unclear on what a DMCA takedown notice is and requires. Perhaps they should get better lawyers.
The digital what?
The Digital Millenium Copyright Act is a law, passed by the 105th congress, which amends the US Code to set out further definitions and extensions of copyright, basically.
The “notice” we’re referring up to above is a weak attempt (much like their weak DRM scheme from last post) at the real thing. This message does not constitute a DMCA takedown, because it’s missing literally every element necessary to be one.
A quick reading of the DMCA, section 512, subsection 3, paragraph A, sets out these requirements.
To wit:
ELEMENTS OF NOTIFICATION-
To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Failing 6 ways from Sunday
Looking at these 6 requirements, and the “notice” I received, let’s do a point-by-point comparison:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This is the to be found. There’s a vague “tonymacx86 legal”, but no real signature, certainly nothing resembling a real name or any legitimate pointer at a real person. This is a hard requirement, as you cannot send a DMCA anonymously or as your company name – a specific person responsible for originating the claim must be identified.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
They claim I’m infringing their copyright to the UniBeast source code. And they don’t really say much more than that. Whether a software crack is copyrightable or not is something I’d love to see tested, though!
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
Nope. The message refers to a “line 8”, but doesn’t give so much as a web link. Line 8 of what? Line 8 of my blog? Line 8 of my famous recipe for chocolate chip cookies? Line 8 of my telephone pool? The message reads as “the content in question”; what content? Where? I’m not being pedantic here – I know exactly what this is braying about, but in order to be a valid DMCA, you don’t get to be this vague.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
Not even close. No address, no phone number. All I get are two nebulous email addresses (on the from: and cc: lines) which, for all I know, go into a bit bucket somewhere.
Oddly enough, Tony’s site, and the email, makes a number of references to a “tonymacx86 LLC”. I thought I’d be proactive and get the necessary contact information from their whois. Let’s see here:
Skaia:~ tk$ whois tonymacx86.com Registered through: GoDaddy.com, LLC (http://www.godaddy.com) Domain Name: TONYMACX86.COM Created on: 12-Jan-10 Expires on: 12-Jan-15 Last Updated on: 23-Dec-12 Registrant: Domains By Proxy, LLC DomainsByProxy.com 14747 N Northsight Blvd Suite 111, PMB 309 Scottsdale, Arizona 85260 United States Administrative Contact: Private, Registration TONYMACX86.COM@domainsbyproxy.com Domains By Proxy, LLC DomainsByProxy.com 14747 N Northsight Blvd Suite 111, PMB 309 Scottsdale, Arizona 85260 United States (480) 624-2599 Fax -- (480) 624-2598
Oh wow. Not even a legitimate phone number. They registered the domain through “DomainsByProxy”, a privacy protection service which renders any random person unable to contact the party on the other side. Great for random people running websites, but of questionable use for a legitimate business. I doubt whether this “Tonymacx86 LLC” actually exists. Let alone whether it has a “legal department”.
5. A statement 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.
No such statement in the email. This is basic, basic boilerplate that any DMCA will contain. This failure only further confirms my suspicion that this email was created by some random lay man, not by a legitimate legal team or even a lawyer.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Again, no such statement. Lacking this boilerplate invalidates the notice.
Conclusion
Congratulations, “tonymacx86 LLC Legal”! Out of the 6 elements required to make a DMCA notice, you successfully completed zero of them.
Speaking of confirming suspicions, this should raise further question in your mind if you plan on using any Tonymacx86 tools for your Hackintosh needs. Why would a legitimate organization/person/group/thing take the extraordinary step of trying to intimidate random bloggers with fake legal notices?
Also of note is the fact that he sent this notice to me, personally. DMCAs are always supposed to be addressed to the service provider (hosting company, ISP, etc). I’d wager this didn’t happen because, if he did, they would have rejected his missive out of hand (for the reasons above). And well, it’s kind of hard to intimidate a random blogger into shutting up about your broken system, if nothing ever happens to them, now isn’t it?
Oh, and another quick note; Should any “tonymacx86 Legal” people be reading this, consider this your notification that any further communiqué with me will be published, critiqued, and quite possibly mocked on this website. Your “confidentiality notice” is about as worthless as your “DMCA”. Furthermore, should they actually decide to pull their heads out and build a passable DMCA notice, it will also be submitted to the Chilling Effects clearinghouse for public scrutiny and comment.