5 ms·

This is a good point, but I think ultimately Github has to comply with it to maintain their legal immunity, it's not their responsibility to determine if a copy

by vhold 6y ago

This is a good point, but I think ultimately Github has to comply with it to maintain their legal immunity, it's not their responsibility to determine if a copyright claim is valid. Similarly, youtube-dl can issue a counter-notice, and Github will have no responsibility to determine the validity of that either. They simply restore access unless they have been notified that a lawsuit is in progress.

yebyen 6y ago
That's exactly how it works. The content carrier is on the hook to be responsive to DMCA takedown requests, and they are ~allowed~ (actually, also required) to be responsive to counter-notices as you describe. Their responsibility begins with removing the hosted data in question, where a valid DMCA notice is issued (and there is no incentive for them to make a judgement about whether the notice is valid or not.) If the authors of youtube-dl want to file a counter claim, that is their right, (which would put GitHub within their rights to restore the content too.) https://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content https://www.dmlp.org/legal-guide/responding-dmca-takedown-no... All of these declarations are made under penalty of perjury, both claims and counter-claims: > The DMCA requires that you swear to the facts in your copyright complaint under penalty of perjury. It is a federal crime to intentionally lie in a sworn declaration. (See U.S. Code, Title 18, Section 1621.) Submitting false information could also result in civil liability—meaning you could incur a financial penalty. The civil liability here is a liability to the party who was damaged, (the author or copyright holder), so even if GitHub wanted to assert by themselves that the DMCA takedown claim was invalid, they would not have standing to sue anyone about it. So pretending even if you did believe youtube-dl authors are in the right and that the courts would be inclined to rule in their favor, and you're Microsoft, you have to honor the DMCA request and take down the content in order for there to be justice, since there can be no party with standing unless there are actual damages. (IANAL, you probably already figured that out by now, and I have no idea what the legal definition of "actual damages" is, but I do know what standing is.) Personally I agree that this does not represent a valid DMCA claim, but for GitHub to assert that and ignore the claim based on the way these laws are written, and those safe-harbor laws as well, I think any lawyer would say this is not possible.
- 15155 6y ago
  > DMCA takedown claim was invalid, they would not have standing to sue anyone about If this exact same logic were extended to YouTube: an invalid DMCA claim will absolutely reduce YouTube ad revenue causing measurable financial damage. Besides arguing: "they should have known it was invalid and refused to comply," how exactly would this not grant standing?
  - yebyen 6y ago
    That may be true, but this is not a claim on YouTube, (or the case of many frivolous claims made by these same RIAA folks on YouTube, that I know we're both thinking about.) There is no advertising sold on GitHub that I am aware of, and unless the youtube-dl authors are paying subscribers, I'm not sure how there could be any monetary damages to GitHub or Microsoft.
    - 15155 6y ago
      YouTube was just an example as it's easier to show damage and remedy. GitHub? - How does this third-party unlawful request not constitute tortious interference between GitHub and all users (or just the paying member who owns this repo)? - If not directly tortious interference, this action could absolutely result in the loss of paying members and reputation damage. - The very fact we're discussing this means GitHub has suffered damage to their brand. - How does this resulting loss of source code not diminish the value of GitHub as a company?
      - yebyen 6y ago
        As I said, I am not a lawyer and you may have out-lawyered me here already, but I'll do my best to respond. The law prescribes this path for youtube-dl authors to respond to the claim, if youtube-dl authors want to put their names behind the project and make a legal case out of it. That severely limits the calculable damage that is possible, (especially if youtube-dl won't pursue the matter further.) The claim in the takedown notice that is required to be submitted under penalty of perjury is simply that the party submitting the claim actually represents [copyright holder] and that notice which RIAA submitted also does not make any demonstrably false claims. It does not entirely fit the format of a regular DMCA copyright takedown request for copyright enforcement, it has two sections (one is called "Anticircumvention Violation"). It goes into detail about how the rights holders which RIAA lawyer represents are aggrieved, with language like: > we have a good faith belief that most of the youtube-dl forks are infringing to the same extent as the parent repository. # (This is probably the most dubious claim, and since the channel for takedown notices is for copyright enforcement, if your argument had a leg to stand on, I think it's this one. But is it calculable damage? And is the mention of Taylor Swift and other RIAA member artists in the README not plenty of evidence that there is actual infringement that is happening, or at least that it could have been asserted in good faith as it were that those rights holders believed there is a valid claim, as this infringement was happening?) and > the youtube-dl source code available on Github (which is the subject of this notice) circumvents YouTube’s rolling cipher to gain unauthorized access to copyrighted audio files, in violation of YouTube’s express terms of service I think for this to be tortious interference, you would have to demonstrate that there was any intentionally false information in these claims, and that's going to be tough. There is part of a DMCA takedown claim that must be asserted under penalty of perjury, and after re-reading the law and jogging my memory I understand again that for the party sending the takedown notice, that is very limited. (Unlike the counter-claim, which has to assert ownership under penalty of perjury, the claim must only assert that claimant represents an owner as identified in the claim and that the factual claims made in the notice are true, in good faith.) Otherwise it's hard to argue that this notice is anything but an effort to enforce multiple sections of the law as it is written, by asking nicely for a hand through the channels that GitHub has made available for enforcement. Whether or not it meets the definition of a valid DMCA takedown notice, it is a letter with many demonstrably true factual points, which GitHub has accepted through their channel for enforcement of claims. GitHub has "voluntarily" complied with their interpretation of the law here, in response, and there is an avenue for redress for the authors, if youtube-dl authors feel this is worth pursuing.
mindslight 6y ago
If the notice had claimed copyright ownership of youtube-dl, then Github would have to act on it even though it was incorrect. But since it's not an actual well formed takedown notice, legally Github does not have to do anything with it - just as if it were missing contact information or were not signed. Unfortunately there is little downside for Github to act on it regardless.
- deleted 6y ago
  [deleted]
Dylan16807 6y ago
They don't need immunity for an invalid takedown! To the extent that their core responsibility is hosting code, it is their responsibility to determine if some claims are valid.
- m11a 6y ago
  That logic is all fine and well, but that requires GitHub to determine if a takedown is valid or not. And if they determine incorrectly in a case, they’re open to damages in that case. So, is it worth it? Or is it worth just letting the parties figure it out? If the DMCA is truly invalid, a counter-claim can be filed. If the other party doesn’t want to file one, I guess GitHub wonders why it should keep the content up when the creator doesn’t have faith in it. Obviously I note the possible flaw in the above logic, in that there’s a difference between an individual developer deciding it’s worth starting a legal faff with a big company by filing a counter-claim, verses GitHub doing it, but their service would go broke dealing with legal requests otherwise. Correct way to deal with this is through your lawmakers, not saying Microsoft should foot the bill for a broken law.

by vhold 6y ago

yebyen 6y ago

That's exactly how it works. The content carrier is on the hook to be responsive to DMCA takedown requests, and they are ~allowed~ (actually, also required) to be responsive to counter-notices as you describe. Their responsibility begins with removing the hosted data in question, where a valid DMCA notice is issued (and there is no incentive for them to make a judgement about whether the notice is valid or not.) If the authors of youtube-dl want to file a counter claim, that is their right, (which would put GitHub within their rights to restore the content too.) https://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content https://www.dmlp.org/legal-guide/responding-dmca-takedown-no... All of these declarations are made under penalty of perjury, both claims and counter-claims: > The DMCA requires that you swear to the facts in your copyright complaint under penalty of perjury. It is a federal crime to intentionally lie in a sworn declaration. (See U.S. Code, Title 18, Section 1621.) Submitting false information could also result in civil liability—meaning you could incur a financial penalty. The civil liability here is a liability to the party who was damaged, (the author or copyright holder), so even if GitHub wanted to assert by themselves that the DMCA takedown claim was invalid, they would not have standing to sue anyone about it. So pretending even if you did believe youtube-dl authors are in the right and that the courts would be inclined to rule in their favor, and you're Microsoft, you have to honor the DMCA request and take down the content in order for there to be justice, since there can be no party with standing unless there are actual damages. (IANAL, you probably already figured that out by now, and I have no idea what the legal definition of "actual damages" is, but I do know what standing is.) Personally I agree that this does not represent a valid DMCA claim, but for GitHub to assert that and ignore the claim based on the way these laws are written, and those safe-harbor laws as well, I think any lawyer would say this is not possible.

15155 6y ago
> DMCA takedown claim was invalid, they would not have standing to sue anyone about If this exact same logic were extended to YouTube: an invalid DMCA claim will absolutely reduce YouTube ad revenue causing measurable financial damage. Besides arguing: "they should have known it was invalid and refused to comply," how exactly would this not grant standing?
- yebyen 6y ago
  That may be true, but this is not a claim on YouTube, (or the case of many frivolous claims made by these same RIAA folks on YouTube, that I know we're both thinking about.) There is no advertising sold on GitHub that I am aware of, and unless the youtube-dl authors are paying subscribers, I'm not sure how there could be any monetary damages to GitHub or Microsoft.
  - 15155 6y ago
    YouTube was just an example as it's easier to show damage and remedy. GitHub? - How does this third-party unlawful request not constitute tortious interference between GitHub and all users (or just the paying member who owns this repo)? - If not directly tortious interference, this action could absolutely result in the loss of paying members and reputation damage. - The very fact we're discussing this means GitHub has suffered damage to their brand. - How does this resulting loss of source code not diminish the value of GitHub as a company?
    - yebyen 6y ago
      As I said, I am not a lawyer and you may have out-lawyered me here already, but I'll do my best to respond. The law prescribes this path for youtube-dl authors to respond to the claim, if youtube-dl authors want to put their names behind the project and make a legal case out of it. That severely limits the calculable damage that is possible, (especially if youtube-dl won't pursue the matter further.) The claim in the takedown notice that is required to be submitted under penalty of perjury is simply that the party submitting the claim actually represents [copyright holder] and that notice which RIAA submitted also does not make any demonstrably false claims. It does not entirely fit the format of a regular DMCA copyright takedown request for copyright enforcement, it has two sections (one is called "Anticircumvention Violation"). It goes into detail about how the rights holders which RIAA lawyer represents are aggrieved, with language like: > we have a good faith belief that most of the youtube-dl forks are infringing to the same extent as the parent repository. # (This is probably the most dubious claim, and since the channel for takedown notices is for copyright enforcement, if your argument had a leg to stand on, I think it's this one. But is it calculable damage? And is the mention of Taylor Swift and other RIAA member artists in the README not plenty of evidence that there is actual infringement that is happening, or at least that it could have been asserted in good faith as it were that those rights holders believed there is a valid claim, as this infringement was happening?) and > the youtube-dl source code available on Github (which is the subject of this notice) circumvents YouTube’s rolling cipher to gain unauthorized access to copyrighted audio files, in violation of YouTube’s express terms of service I think for this to be tortious interference, you would have to demonstrate that there was any intentionally false information in these claims, and that's going to be tough. There is part of a DMCA takedown claim that must be asserted under penalty of perjury, and after re-reading the law and jogging my memory I understand again that for the party sending the takedown notice, that is very limited. (Unlike the counter-claim, which has to assert ownership under penalty of perjury, the claim must only assert that claimant represents an owner as identified in the claim and that the factual claims made in the notice are true, in good faith.) Otherwise it's hard to argue that this notice is anything but an effort to enforce multiple sections of the law as it is written, by asking nicely for a hand through the channels that GitHub has made available for enforcement. Whether or not it meets the definition of a valid DMCA takedown notice, it is a letter with many demonstrably true factual points, which GitHub has accepted through their channel for enforcement of claims. GitHub has "voluntarily" complied with their interpretation of the law here, in response, and there is an avenue for redress for the authors, if youtube-dl authors feel this is worth pursuing.

mindslight 6y ago

If the notice had claimed copyright ownership of youtube-dl, then Github would have to act on it even though it was incorrect. But since it's not an actual well formed takedown notice, legally Github does not have to do anything with it - just as if it were missing contact information or were not signed. Unfortunately there is little downside for Github to act on it regardless.

deleted 6y ago
[deleted]

Dylan16807 6y ago

They don't need immunity for an invalid takedown! To the extent that their core responsibility is hosting code, it is their responsibility to determine if some claims are valid.

m11a 6y ago
That logic is all fine and well, but that requires GitHub to determine if a takedown is valid or not. And if they determine incorrectly in a case, they’re open to damages in that case. So, is it worth it? Or is it worth just letting the parties figure it out? If the DMCA is truly invalid, a counter-claim can be filed. If the other party doesn’t want to file one, I guess GitHub wonders why it should keep the content up when the creator doesn’t have faith in it. Obviously I note the possible flaw in the above logic, in that there’s a difference between an individual developer deciding it’s worth starting a legal faff with a big company by filing a counter-claim, verses GitHub doing it, but their service would go broke dealing with legal requests otherwise. Correct way to deal with this is through your lawmakers, not saying Microsoft should foot the bill for a broken law.