[belorn]

But that is not what the DMCA copyright claim says. It does not complain about redistributing the files of a paid OS. The complaint is explicitly about providing a tool to work around technical restrictions, so "just provided an exe and some patch files" will not make microsoft happy.

A common copyright claim of someone sharing copies of proprietary files would not make news. Using the DRM circumvention provision in DMCA is a bit more rare.

My guess is that the technical restrictions being alluded to is the advertisement and telemetry that is baked in.

There are comments here that speculate about the issue being the creation of a derivative work. If the claim had said so it too would be interesting as the line between operative system and user space is always a bit blurry and people been arguing what is what for decades.

[vonmoltke]

The way I read the complaint[1] there are two separate claims made. The first, distributing the modified ISO, appears to be the core DMCA claim:

> BSA has determined that GitHub.com (specifically, content made available on GitHub through the link listed below) is providing access to copyrighted, nonpublic, proprietary information of our member Microsoft. The link leads to copyrighted material pertaining to Microsoft. Specifically, the copyrighted material in question can be found at the following link:

The second claim, concerning technical restrictions, is advanced as an EULA violation:

> Moreover[2], the link provides a work around technical restrictions of the software, which violates Microsoft’s Software License Terms. Please see lines 22 to 30 from the following link: https://github.com/ninjutsu-project/ninjutsu-project.github....

I'm sure MS and the BSA would love to have any EULA violation classified as a DMCA violation, but I don't know if this second claim would hold up. I'm not an IP (or any sort of) lawyer, and my ability to parse legalese is limited, but I think MS/BSA have a much weaker case for this if the complaint did not have claim 1. That is, distributing the tools may "not make microsoft happy", but their legal foundation to take those down is much shakier.

[1] https://github.com/github/dmca/commit/e6911fbf79c67c6f9e834c...

[2] Use of this interjection is what leads me to separate the two quoted sections into two claims.

Edit: "did not have claim 1", not "did not have claim 2"

[belorn]

I can see how seeing it as two claims is a valid interpretation.

If we look at claim 2, the term "technical restrictions" is often used as a synonym to DRM in many places. The law text use different words: "(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner".

Without invoking the circumvent clause, claim 2 looks misplaced in a DMCA notice. What aspect of copyright law is being invoked? The only thing left would have to be derivative work. The case law for that is spotty, through blizzard did win one such case if I remember right where a cheating tool enabled players to break the EULA. Blizzard argued that the tool assisted players in creating an illegal derivative work of the wow client, as the tool modified the client in an unlawful way against the conditions in the EULA, and thus the developers of the cheating tool could be held responsible for the creation. BSA could make a similar argument but I don't think they are based on how claim 2 was written.

If we see the DMCA notice as two distinct claims, and we remove claim 2 as being irrelevant in the context of copyright, then what is left is the BSA claim that the repository had copyrighted material and the accused that said they don't. Looking at the linked video myself, it seems that they did copy the installer iso from microsoft. Based on those observations I suspect that Ninjutsu os is simply an unmodified installer bundled with post-install scripts. That might be a copyright infringement, and if so, removing the unmodified installer and make the user download it themselves might resolve the issue. That is, as long as claim 2 is ignored.

As a side note, I would find it somewhat funny if microsoft later claimed that pre- and post install scripts create a derivative work. It has some interesting implication for configuration management utilities and cloud solutions.

[smolder]

This is a bad move for MS. It's user hostile enough to have telemetry and ads in the OS in the first place. If they fight against people's efforts to make it usable again, they lose market share, developers/power users lose interest in the platform, less software gets bought from and made for their store, and so on. I think what they really need is a pro version of Windows that attracts pro users by removing the bullshit to start with. That shouldn't be exclusive to Enterprise.

[Ntrails]

> It's user hostile enough to have telemetry and ads in the OS in the first place.

I may be alone, but I think those two things are very different classes of feature, and am very relaxed about the former as an opt out.

[jeroenhd]

The opt-out does not exist for Home and Pro users. Only Windows 10 Enterprise can completely disable the telemetry engine. Unless you take extra steps (firewall rules, network-level blocking, etc.) Microsoft will get a ping every time a new device is plugged in and there's no way to disable that for the common user.

I used to accept most telemetry popups from Microsoft before they became opt-out, but in the scheme MS has currently set up, I don't think MS let their customers make an informed choice about their data collection. For that reason, I oppose it as much as I can.

[SkyBelow]

> I don't think MS let their customers make an informed choice about their data collection.

I think this is part of a larger problem where no single individual can given informed consent to any corporate contract because one involves a team of lawyers and the other involves an average person. Even if the single individual was a lawyer it would be questionable, but for the average person who has a limited college education and no special legal education at all, there is far too great a power difference for informed consent to be given.

[lozenge]

You can't opt out of telemetry in Windows. Everything on the list here is collected: https://docs.microsoft.com/en-gb/windows/privacy/required-wi...

[Xelbair]

There is no opt-out of telemetry in win10. You can only set it to basic.

[gruez]

You can set it to one level lower ("security") on enterprise and education editions.

https://docs.microsoft.com/en-us/windows/privacy/configure-w...

[Xelbair]

It still isn't opt-out. And you still have no exact idea what is and isn't sent - only their promises.

Personally i use ancient trick that block telemetry on metered connection, and you can set LAN to be metered too via registry key.

No idea if it still works to be honest.

[pbhjpbhj]

I don't know, but I assume the telemetry is used for marketing by Microsoft at least and probably by their partners (ie people who financially benefit Microsoft partially in return for access to "telemetry").

[iso1631]

I'm happy about the former as an opt in, and where I can target which server I want the data to go. Could be quite handy actually.

[aww_dang]

They've been doing this kind of thing for decades and still have market share.

[nailer]

The hack is probably removing even the 'Security' low-level telemetry. Which yes, would hurt users.

https://docs.microsoft.com/en-us/windows/privacy/configure-w...

Edit: if you don't feel like reading the link, the 'security' level is the minimum required for updates.

No updates means no security updates. Which means exploitable boxes. Which would return us to the grand old days of exploited Windows XP botnets.

[ghostpepper]

Is there any technical reason why telemetry would be required to make updates work?

[nailer]

How do you have a machine download updates and install them without tracking that it is downloading updates and installing them successfully?

[MaxBarraclough]

Every Linux distro manages this. You have the client machine determine which updates it needs, as it has access both to its own state, and to the package repository's manifest.

[nailer]

0 Linux distros manage this. Have you ever ran an apt or yum repo?

[im3w1l]

> The complaint is explicitly about providing a tool to work around technical restrictions,

That's their legal argument. Doesn't mean that's their actual grievance.

[CivBase]

What exactly is the basis for this DMCA claim? Is there any precedent for this or does MS just think their PR has it too easy?

DRM is supposed to prevent redistribution of copyrighted works. That's the unethical part. If the user is not redistributing copyrighted works, why should the law care about the preservation of DRM?

If I buy a locked safe at an auction and it contains a bunch of copyrighted paintings, nobody would get mad at me for breaking the lock so I could get to them. What else am I going to do? Hang the safe on my wall? The problem only arises if I start copying the paintings and distributing them.

[AnthonyMouse]

> If I buy a locked safe at an auction and it contains a bunch of copyrighted paintings, nobody would get mad at me for breaking the lock so I could get to them. What else am I going to do? Hang the safe on my wall? The problem only arises if I start copying the paintings and distributing them.

This is why DMCA 1201 is such a worthless weasel and needs to be destroyed.

If you're circumventing in order to commit copyright infringement, that's already illegal and you don't need a separate rule for it. If you're circumventing in order to do something that isn't copyright infringement, why should that be illegal?

[salawat]

No, it's probably shit like Driver Signature Enforcement. I've been doing everything I can in order to keep my Vaio Z-Series able to avail itself of new drivers from Nvidia, but since Sony abandoned maintenance, and no one else will, the community of users that like the platform have gone through gargantuan efforts to try to get drivers working for it.

Which Windows 7 now refuses to load, because they aren't blessed by Microsoft, who've officially discontinued support.

Microsoft can go to hell in that regard. I didn't ask for them to backport their driver nanny onto my machine at the behest of the media industry. They broke my machine, not the other way around.

I expect to be able to compute. Not be patted on the head and fed platitudes that "Oh, we can't let you do that. We have agreements to abide by which you were never considered to be a party to, yet nevertheless, will be subject to."

If I have to learn to handcode UEFI assembly to un-f my machine, so be it. I could probably load Linux on it, or uninstall that update in particular, but to be frank, at this point, my quest to lobotomize Windows has become a project continued out of spite. I will not accept this kind of velvet gloved, law by corporate compact. Users deserve better. If other companies are so on their last leg they need to excise huge chunks of user agency to remain viable as businesses, that is not my concern. My machine, at a fundamental level, is mine. Not the OS vendors.

We used to do what seemed like a beeter job at respecting that. Alas, those days are seemingly long gone or on the way out.

[an_opabinia]

> technical restrictions being alluded to is the advertisement and telemetry that is baked in.

I'm pretty sure the complaint is about anti-piracy features. In that situation it's a picture perfect application of DMCA. Also it would make way more sense.