It's an excellent point. DMCA is for copyright. My take (I have a background in this area but IANAL): I think they can get away with the copyright because of the name/content usage (no one of the opposite end of the request is going to question that, it seems obvious), but I think it's clear to those in the know that's not WHY they went after this one.

In theory, they could probably use DCMA to go after anyone using the terms (right or wrong). In practicality, they used it as a tool to go after this particular one because they didn't like what they were doing.

DMCA covers circumvention devices, not just directly infringing material.

See for example, the group arrested for selling devices that allowed people to take control of their own Nintendo Switch systems[1].

Although, after digging into the story, it looks like they may have also operated an illicit app store containing cracked IPs, so that situation is a little murky.

[1] https://www.nintendolife.com/news/2023/04/nintendo-hacker-ga...

I think jailbreaking is a current exception to the DMCA (according to the copyright office's latest report). An app store full of cracked games is obviously illegal, though.

CFAA[0] is one that comes to mind but I also think that has different issues with what might be overly vague terminology. It at least seems more applicable to this, though I am certainly not a legal expert.

[0] https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act

There was a somewhat recent supreme court ruling that said just breaking some ToS is not a CFAA violation. Unless the gpt4free repo had straight up stolen credentials the CFAA shouldn't apply.

Does "takedown notice" automatically equal "DMCA"? The repo itself and the parent to your comment don't mention DMCA at all.

Hm, good point, I think of "takedown notice" as being about the DMCA, because I never heard that term at all before the DMCA, I think of it as a term of art from DMCA. But people could be using it differently or mis-using it.

However, this is on Github. Github specifically has a "DMCA Takedown Policy" [1]. I don't believe they have any other policy or procedure involving a "takedown notice". But sure, I could be wrong, or the notice on the repo could be not quite right about what's going on.

Other companies, even big ones, will just take down anything a big corporation asks them to, with no written policy or a written policy basically saying that's what they'll do, while using language implying the DMCA (like "takedown notice"), when that's not what they're doing at all. But Github has actually been pretty good at actually doing this according to the procedure spelled out in DMCA, and not just randomly for whatever another big corporation might want. And being clear about what they're doing why if they're doing something else.

[1] https://docs.github.com/en/site-policy/content-removal-polic...

From the submission (the repo's readme):

> We got a takedown request by openai's legal team...

Did Github take a separate action somewhere?

Good point! This was all confusing.

> Xtekky initially told me that he hadn't decided whether to take the repo down or not. However, several hours after this story first published, we chatted again and he told me that he plans to keep the repo up and to tell OpenAI that, if they want it taken down, they should file a formal request with GitHub instead of with him.

> "I believe they contacted me before to pressurize me into deleting the repo myself," he said. "But the right way should be an actual official DMCA, through GitHub."

https://www.tomshardware.com/news/openai-sends-shutdown-lett...

Fraud?

They should be happy that OpenAI went after them with the DMCA and not for computer hacking and fraud, which is what they technically did by hijacking other people's API keys.

A lawyer must have advised this, as financial fraud likely has a higher burden of proof. They might still proceed with criminal charges (if a DA agrees) or a lawsuit.

Yeah what's curious to me is why OpenAI has grounds here vs [the abused 3rd parties]. Maybe they are trying to stand up for the people using their API as a courtesy because they want them to stay in business or something, but it seems the damaged parties are the 3rd party services bankrolling the access, and so they'd need to pursue legal action and/or patch their services.

I do imagine OpenAI has something in their terms where you're not allowed to use their APIs unless you agree to their terms, which includes payment and not using other accounts than your own (fraud). So maybe that's it?

The author does not use official APIs so the author does not have to agree to the official ToS.