Released back in 2015, the Fuckr desktop application provides enhanced access to the popular Grindr dating service. However, the extra features offered by the software are controversial, to say the least.
Fuckr gives users the ability to precisely locate hundreds of Grindr users to an accuracy of just a few feet. In addition, Fuckr offers access to a trove of information about Grindr users not freely available, including photos, HIV status, and even their preferred sexual position.
Early September, following an exposé by Queer Europe, Grindr decided to end Fuckr’s party. The company filed a DMCA notice with Github, where the application’s code was hosted. This resulted in Fuckr being taken down.
As reported Tuesday, Grindr is still battling availability of the software. Dozens of ‘forks’ of Fuckr were still available for download from Github so, in response, Grindr filed a new notice with the coding platform. It targeted around 90 Fuckr clones, all of which were taken down by Github. Now, however, Grindr has another problem on its hands.
When content is taken down following the filing of a DMCA notice, the target of the notice (in this case a user called ‘tomlandia’) has the right to issue a DMCA counter-notice. This is a challenge to the statement of facts in the original notice and will usually point out deficiencies therein.
In its original complaint, Grindr claimed that Fuckr “facilitate[s] unauthorized access to the Grindr app by circumventing Grindr’s access controls,” adding that the software was primarily designed for the purpose of “circumventing a technological measure that effectively controls access to a work” protected under the Copyright Act.
In a DMCA counter-notice filed this week, ‘tomlandia’ argues that Grindr’s claims are false. After confirming that he is indeed the creator of Fuckr, the Github user offers a short rejection of the dating app’s copyright complaint..
“Fuckr does not bypass any technical access control mechanism and does not access any work copyrighted by Grindr LLC,” the notice reads.
“I swear, under penalty of perjury, that I have a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
While DMCA takedown notices themselves can be filed at will with almost no consequences when they’re inaccurate, DMCA counter-notices open up a can of worms for those who file them, as Github explains.
“Submitting a DMCA counter notice can have real legal consequences. If the complaining party disagrees that their takedown notice was mistaken, they might decide to file a lawsuit against you to keep the content disabled,” the code platform says.
“You should conduct a thorough investigation into the allegations made in the takedown notice and probably talk to a lawyer before submitting a counter notice.”
Neither Grindr or TF has been able to contact ‘tomlandia’ to ask whether he sought legal advice but by submitting the counter-notice, he opens himself up to potential legal action. Github explains that copyright complaints can prove complicated, highlighting the very reason given by Grindr for taking Fuckr down.
“Sometimes a takedown notice might allege infringement in a way that seems odd or indirect. Copyright laws are complicated and can lead to some unexpected results,” Github notes.
“In some cases a takedown notice might allege that your source code infringes because of what it can do after it is compiled and run. For example: The notice may claim that your software is used to circumvent access controls to copyrighted works.”
While the argument over whether that really is the case with Fuckr probably lies with lawyers and ultimately the Court, the counter-notice from ‘tomlandia’ now sets in motion a process in which Grindr will either have to put up or shut up.
For the next 10 to 14 days, Github will keep the Fuckr repository down and if the company doesn’t hear anything from Grindr during that period, the repository will go back up. However, if Grindr believes its claim is valid, it will be forced to take swift legal action against ‘tomlandia’ to ensure Github doesn’t reactivate the repo.
If ‘tomlandia’ is in the United States, his counter-notice states that he consents for legal action to go ahead in the “jurisdiction of Federal District Court for the judicial district in which [his] address is located” or the Northern District of California where GitHub is located.
Only time will tell where the battle, if one is to take place, will be fought.