[linux-elitists] Microsoft goes after Linux kernel downloaders?

Karsten M. Self kmself@ix.netcom.com
Tue Feb 17 18:15:26 PST 2004

on Mon, Feb 16, 2004 at 08:15:28PM -0600, Brian McGroarty (brian@mcgroarty.net) wrote:
> I went trolling, and it seems I caught the biggest fish of them all.
> When the story about the MS leak appeared on Slashdot this past week,
> I thought I'd have a bit of fun. A post entitled "Kernel source here,"
> which pointed to a torrent of Linux 2.6.2, was all it took to hook
> about a thousand would-be NT and 2000 source downloaders.
> "You can find the build applications and such with Google already."
> I trickled the torrent out at about 1k/s for the first few hours, then
> let it go full-speed once we'd crossed over 600 active
> participants. Let 'em all have the punchline at once.
> Imagine my surprise when my DSL stops working this morning, I call my
> provider, and I learn that I've been accused of copyright
> infringement. I argued that I was doing absolutely nothing wrong, and
> they turned service back on. After I asked to see the accuser's email,
> they forwarded the below. Sure enough, it's a bona fide valentine from
> MS Legal:

>   J.K. Weston
>   Microsoft Corporation
>   One Microsoft Way
>   Redmond, WA 98052
>   jkweston@microsoft.com
>   Tel: (425) 703-5529
>   14 Feb 2004
>   [My ISP]
>   CODE AT: [one of my IPs]
>   Date of Infringement: Detail below.
>   Dear [My ISP]:
>   We have received information that one of your users as identified
>   above by the SITE/URL [My IP] may have engaged in the unlawful
>   distribution of Microsoft's source code for Windows 2000, and/or
>   Windows NT4, by distributing and offering for download these source
>   code files via a peer-to-peer network.
>   Since you own this IP address, we request that you take appropriate
>   action against the account holder under your Abuse Policy/Terms of
>   Service Agreement.

Interestingly, Microsoft *didn't* frame this as a 17 USC 512 DMCA
takedown notice, which would have required:

    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.


See also the elements of notification on the same page.

If I were you, I'd bitch hotly at my ISP for disabling Net access
without even cursorially validating the claims of the Microsoft
notification.  See specifically 

    (f), Misrepresentations: 

    Any person who knowingly materially misrepresents under this section

        (1) that material or activity is infringing, or

        (2) that material or activity was removed or disabled by mistake
        or misidentification,

    shall be liable for any damages, including costs and attorneys'
    fees, incurred by the alleged infringer, by any copyright owner or
    copyright owner's authorized licensee, or by a service provider, who
    is injured by such misrepresentation, as the result of the service
    provider relying upon such misrepresentation in removing or
    disabling access to the material or activity claimed to be
    infringing, or in replacing the removed material or ceasing to
    disable access to it.

    (g) Replacement of Removed or Disabled Material and Limitation on
    Other Liability. -

        (1) No liability for taking down generally. -

        Subject to paragraph (2), a service provider shall not be liable
        to any person for any claim based on the service provider's good
        faith disabling of access to, or removal of, material or
        activity claimed to be infringing or based on facts or
        circumstances from which infringing activity is apparent,
        regardless of whether the material or activity is ultimately
        determined to be infringing.

> The IP they chose wasn't the tracker, it was a system participating as
> a torrent peer. This makes me wonder if there are a thousand other P2P
> Linux 2.6.2 downloaders enjoying MS' Feb 14 love.


> Now, admittedly I was just asking for it by hinting at something that
> might offend the big giant. Still, it took them three or four days to
> issue this letter. In the meantime, shouldn't they have been able to
> find someone capable of cracking open a .tar.bz2? Did nobody raise the
> question of how a leaked CD fits into a 32m file?

I'd say there are some more interesting questions to ask.


Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
     Dean^W WTF:  Kerry.
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