California’s statute for this even specifically calls out bringing up someone’s immigration status.
The relevant quote from Muse Group:
>>> “Upon further investigation, it became clear that <developer> is a Chinese national, but not resident in China. As a guest in his current country, his residency status is predicated on a number of conditions, one of which is not violating the law. If found in violation of laws, residency may be revoked and he may be deported to his home country. This becomes even further complicated given another repo of his - Fuck XXQG which is highly critical of the Chinese government. Were he deported to China, who knows how he may be received.”
The Chinese developer does not, in fact, have the right to pirate stuff.
Even if you claim that there is no piracy, you'd need to show that MuseGroup believes themselves that there is no piracy. But they obviously do.
Some NB though:
- Muse is asking Xmader to delete his GitHub repository.
- The pirated materials do not exist in the GitHub repository, that is separately and independently stored on IPFS (his GitHub repository is the source code for essentially a qBittorrent app or a torrent tracker).
- Xmader may be legally required to not share copyrighted materials on IPFS. But that’s not what Muse asked him.
- It’s definitely not clear that he lacks the legal right to abstain from deleting the GitHub repository which does not contain copyrighted materials.
- The NY law you cited doesn’t seem to have anything about “intent” so it’s not obvious that you’d have to show MuseGroup believed there was no piracy. It may be strict liability instead? At least as worded. I don’t know; I haven’t looked at any cases.
Also, I think you may have some of the characters mixed up. Marcan is not the alleged violator, he is an uninvolved third party observer who, in an unrelated tangent, happened to have ported Linux to PS4 and is currently porting Linux to M1 MacBooks. More relevantly he did survive a lawsuit from Sony related to hacking the PS3 and was involved in lengthy proceedings accused of CFAA and DMCA violations so he likely has some first-hand knowledge of the nuances of relevant federal laws.
You're right. Fixed.
Without a pre-existing obligation there is no court case. What would you sue for?
Reasonable people might be able to disagree on whether this GitHub repository is per se illegal. If it’s the IPFS files that are illegal instead of the GitHub repo, then demanding he take down the GitHub repo would be seeking consideration from him to do something he’s not inherently bound by law to do anyways.
Certainly a place where reasonable minds might say “Huh. Sounds like there’s room for a court to make a decision on that.” rather than holding a dogmatic opinion before/without really diving deep into all the details.
Putting aside the legality and ethics of piracy, the premise of somebody getting sued by a company, losing, getting deported to a hostile country that's then tipped off by the company on an entirely different issue, seems very wrong - but perhaps only ethically and not legally.
I'm not sure how else to interpret the quote in runnerup's comment together with this quote from the article: Chistyakov then threatens that, if the repositories in question are not closed, he will have to "transfer information about you to our lawyers who will cooperate with Github.com and Chinese government to physically find you and stop the illegal use of licensed content."
MuseGroup can file a civil lawsuit but (I think?) losing a civil lawsuit probably wouldn't affect anyone's immigration status. Civil lawsuits cannot directly result in criminal convictions, but if MuseGroup won, the court could penalize Xmader with hefty financial fees and order him to delete his GitHub repository and cease sharing any files on IPFS. If Xmader ignores the court orders, that still isn't necessarily a "crime" although the punishment for it looks very much like a punishment for a criminal: The court could "hold him in contempt" and start fining him more for every day of non-compliance, or even lock him in jail until he does whatever the court ordered. But it still wouldn't directly be a "crime" so he would not get a "criminal record". However, to accomplish what MuseGroup asked wouldn't require Xmader's action -- most likely the order could be presented to GitHub and GitHub would take down the repository at that point, even without Xmader's cooperation.
MuseGroup can also push the relevant law enforcement agencies to arrest and charge Xmader with crimes. Generally if prosecutors bring charges they tend to secure a conviction (most agencies have very high conviction rates). It's not clear if MuseGroup would be able to get law enforcement to take this seriously, but if Disney or RIAA stepped in they could certainly make this happen. I have some suspicions that the RIAA doesn't care about this nearly as much as MuseGroup does. This sheet music makes up 100% of Muse's profits but probably less than 0.1% of RIAA's revenue.
See here where a man who has never, ever, stepped foot in America and who (I think?) had no server assets or infrastructure in the USA was arrested by US law enforcement agents in New Zealand at the urging of MPAA/RIAA.
The next question is whether a criminal conviction for this would result in deportation to China. From what I know about Canada's immigration laws they do take felonies very seriously - if you get a misdemeanor DUI in the USA, you will "never" be allowed to travel to Canada because DUI is a felony there. So they won't even let you in for a week.
However, if the crimes he is convicted of are not too "serious" then Canada as a regular policy, will not deport him. The judge who decides a criminal case can also choose to go lighter on the sentencing (<6 months jail) to specifically avoid deportation. They may do this if they are sympathetic and feel that causing deportation would be cruel and unusual treatment. If they are "serious" crimes, there is a process to ask the Canadian government to "ignore" the crimes for the purposes of deportation. USA has a similar process but there are no guarantees. A man who sold copied CD's was deported in the USA:
However, Canada, like most western countries, has a program for "asylum". There is a process to be recognized as a person who will face cruel/unusual punishment if deported. Asylee's can be deported if they commit crimes while in Canada, but there is also a process for not being deported. Everything related to asylum, immigration, and getting criminal records ignored generally involve very arduous processes and its never clear what kind of outcomes to expect. However, becoming recognized for asylum can be a long and difficult process, and one that Xmader probably has not started.
It's worth hearing some of Xmader's opinions about China and the work he does, as well as hearing him acknowledge how it affects his family. He is very, very stubborn and idealistic. He has made incredible efforts to live in a way that is true to his beliefs. He idolizes Aaron Swartz. It's unlikely that he will fully accept MuseGroup's position without some kind of court intervention.
If MuseGroup has a case w.r.t. the GitHub repository, it's probably much easier and cheaper for them to get a civil injunction against GitHub itself rather than Xmader. GitHub is located in the USA, so you wouldn't need a team of international lawyers, and GitHub is reasonably sympathetic to rightsholders and corporate interests.
Oh and per the original isssue, perhaps Poettering needs to go be the sacrificial lamb and make a "telemetryd" so users can send crash reports to the devs they trust, and also possibly send them via intermediaries to filter out distro-sepcific stuff.
Whatever you think of auto-updates or telemtry, doing them ad-hoc and app-specific is not the distro way, and surely worse.
Also the hate mail over telemetryd will be hilarious.