8 ms·

First, thank you for coming here and responding. Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there

by dannyw 6y ago

First, thank you for coming here and responding. Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. DMCA takedowns are for taking down works you own the copyright to; not for enforcing any arbitrary aspect of legislation. It’s my understanding that service providers do not need to comply with illegal requests. For example, if I DMCA’d <an oil producer>’s repository on accused violations of environmental protection acts, I don’t think it would be taken down, would it? If GitHub was an independent company advocating for open source; would it have acted any different? Note: Microsoft is a member of the RIAA. Apple made waves and built lots of favour for resisting the FBI and challenging quasi-legal processes. They took risks and demonstrated their principles (Suing the FBI over a terrorist’s iPhone is unlikely to be the first recommendation from their legal counsel). This smells like a qausi-legal process, and it would look great for GitHub/Microsoft if you do.

chews 6y ago
"It’s my understand(sp) that service providers do not need to comply with illegal requests." winner winner chicken dinner.
- jackhughman 6y ago
  But a takedown is required in the course of due process until some leaning can be established as to legality and validity of the request. It's really, really, really stupid, because it presumes guilt before innocence, standing in opposition to most general legal principles. If anything, Microsoft via Github would do well to assert itself by not conforming, forcing the court to examine the DMCA's legality and process.
  - CRConrad 6y ago
    > It's really, really, really stupid, because it presumes guilt before innocence, standing in opposition to most general legal principles. So shouldn't the next US-American recipient of one of these notices refuse to comply on the grounds that the law is unconstitutional?
    - sizt 6y ago
      Under the common law, actual possession is seen as prima facie evidence of ownership — i.e., possession creates a presumption of ownership, but that presumption is rebuttable. The U.S. Court of Appeals for the Fourth Circuit in 2006 begins a discussion of possession with: "That possession is nine-tenths of the law is a truism hardly bearing repetition. Statements to this effect have existed almost as long as the common law itself." Willcox v. Stroup, 467 F.3d 409, 412 (4th Cir. 2006). It doesn’t mean whoever possesses something is automatically the owner. It means that absent evidence of superior title, possession generally suffices to show ownership.
  - sam0x17 6y ago
    With Microsoft's resources they could easily ignore the DMCA takedown and battle it out in the courts. But Microsoft is a paying member of the RIAA soooooooo
    - zaarn 6y ago
      Why would Microsoft stand up to a DMCA takedown from any organization to a random github repo that they can't immediately tell is being wrongly taken down? Unless you pay GitHub the legal fees, no organization would lift a finger.
      - sebow 6y ago
        Most people don't expect Github/Gitlab/Microsoft/etc. to stand up necessarily in courts against such takedowns.They would just like at least a notification or just an appeal process.(See the mechanism that Google has in place on Youtube) Frankly this youtube-dl scandal alongside many others(ad blockers, script blockers,etc) is just one of a lengthy series of events from the dinosaurs of the internet that battle for revenue that is immensely falling. This is mostly about money and nothing else. I would also like to say that i think 95%+ of the applications of DMCA are on content that is palpable and makes sense "of taking down", not some software or code that nobody really can have a monopoly on.They therefore applied this law not in the spirit it was intended to, but in some disregarding fashion of how internet software & communications work. By the same logic any tool that is used to download/stream internet content is vulnerable, and when you take a closer look that might actually include a lot of software if not the majority of all software.
jfrunyon 6y ago
DMCA takedowns do not need to be from the copyright holder themselves. They can be from ANY authorized agent of the copyright holder, like a lawyer, or ... the rights-enforcement association to which the copyright holder belongs. ETA: And yes, if you submitted a DMCA takedown which has any reasonable chance (from the recipient/provider's perspective) of being valid, it would get taken down. Otherwise, the provider takes on their customer's liability. Very few (and zero free) providers are willing to do so.
- thaumasiotes 6y ago
  >> Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. > DMCA takedowns do not need to be from the copyright holder themselves. They can be from ANY authorized agent of the copyright holder I think it's clear that "RIAA is not the copyright holder" is shorthand for "no member of the RIAA is the copyright holder". Even if you don't accept that, you can easily deduce that no member of the RIAA is the copyright holder by looking at the immediately following claim, "there is no infringing material". Given that there is no infringing material, it can't really matter whose agent the RIAA purports to be.
  - CrazyStat 6y ago
    The youtube-dl DMCA notice does not allege copyright infringement (section 512 of the DMCA) but rather breaking DRM (section 1201 of the DMCA). Arguing that there is no [copyright-]infringing material is completely missing the point. The EFF has a write-up about it [1]. [1] https://www.eff.org/deeplinks/2020/11/github-youtube-dl-takedown-isnt-just-problem-american-law https://www.eff.org/deeplinks/2020/11/github-youtube-dl-take...
    - thaumasiotes 6y ago
      I'm not disputing that. I'm saying jfrunyon's comment is stupid.
      - deleted 6y ago
avsteele 6y ago
According to the EFF link below they don't need to be a holder. If the software is for breaking locks they can submit a take down notice under section 1201. https://www.eff.org/deeplinks/2020/11/github-youtube-dl-takedown-isnt-just-problem-american-law https://www.eff.org/deeplinks/2020/11/github-youtube-dl-take...
- marcan_42 6y ago
  It's a notice under the provisions of the DMCA, but it's not a "DMCA takedown". What we call DMCA takedowns, coloquially, with the whole counter notification process etc, are notices submitted under Title II. That title deals with copyright infringement, not anti-circumvention. That means treating such notices as a typical DMCA notice, as GitHub has done, is incorrect. GitHub may well choose to follow the takedown if it considers it valid and the repo infringing, but what they've done is treat it as a copyright takedown. And that is clearly, unambiguously wrong, as it goes against their own DMCA policy, linked from the youtube-dl repo's disabled notice, which says: > The DMCA notice and takedown process should be used only for complaints about copyright infringement. Notices sent through our DMCA process must identify copyrighted work or works that are allegedly being infringed. So yes, GitHub messed up here. That doesn't mean they shouldn't have taken down youtube-dl, but they way they went about doing it is wrong. You'll notice that the EFF, in that article, never goes into the details of the takedown process that happened. They never said what GitHub did was proper. They are just talking about the anti-circumvention law in general.
  - jfrunyon 6y ago
    The key here is that if they DIDN'T comply with it, the RIAA might sue them. Even if they were to win it (because a judge determines the takedown provisions don't cover it or for another reason), they'd be in for a costly legal battle. Moreover, without the Title II provisions, they would be liable for having distributed the circumvention in the past! On the other hand, if they DO comply with it, the RIAA is extremely unlikely to sue them, whether this is covered by the safe-harbor provisions of Title II or not.
    - 6y ago
mytailorisrich 6y ago
Complying with DMCA notices covers the rear-end of service providers. Therefore there is only risk and no benefit for a service provider not to comply with any notices they might receive.
onion2k 6y ago
What's the penalty for failing to comply with a takedown that does turn out to be legal? That's the risk that Github has to consider.
ponker 6y ago
Microsoft is an enterprise software company that suckles at the teat of government invoicing to the tune of tens of billions of dollars, they are nothing like Apple in this regard.
gamblor956 6y ago
Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. Almost all of the lawyers at HN, and the lawyers at the EFF, and the guy at Popehat, are all generally in agreement that there was nothing wrong with what the RIAA or what GitHub did. It should tell you something when the people most in a position to evaluate the situation don't see anything amiss.
- jfrunyon 6y ago
  Especially when almost all of those people are staunchly against the anti-circumvention provisions.
  - tankenmate 6y ago
    It would seem your issue is with the DMCA, if so then the way to fix it is to change the legislation; lobby the necessary politicians to get the law changed. If you object to people following the law because you feel they don't hold the same views on the matter at hand, the point is moot, unless of course you feel they should break the law. Which leads back to, if you don't like a law then lobby for it to be changed.
    - alien1993 6y ago
      Problem solved people.
    - xtian 6y ago
      Which laws have you gotten changed through lobbying?
      - barkingcat 6y ago
        Isn't this exactly how laws are changed in the US? Lobbying has more to do with how the country works than voting.
        6y ago
Cthulhu_ 6y ago
If youtube-dl disagrees with the takedown, they need to take it up with the RIAA. If the RIAA - or a judge - decides in favor of youtube-dl, Github can restore the repository. This is how things work; it may not be how you'd like things to work, but I doubt you've ever been involved in any part of a DMCA takedown request (as the sender, receiver, or the person that had their stuff taken down).
- ivanche 6y ago
  Textbook example of "guilty until proven innocent"...
dragonwriter 6y ago
> Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. That doesn't make the notice facially invalid, if they have made the required representations (which they have, as they have alleged specific infringement of their works on a contributory infringement theory as well as alleging that the works in question violated DMCA anticircumvention provisions, and particularly alleging that the combination of the anticircumvention violation plus the specific identification of works of RIAA-represented owners as targets was the basis for the contributory infringement claim.) Unless Github wants to expose itself to both upfront costs and potential liability by judging the details of the legal theories and fact claims in facially-valid DMCA takedown notices, it makes sense for them to react to facially-valid notices and wait for a facially-valid counter-notice before restoring user content.
qw3rty01 6y ago
(IANAL) It doesn't matter if people think RIAA's DMCA isn't legally valid (or even if it isn't actually valid), Github still has to follow section 512 of the DMCA as a service provider, and it's not their responsibility to determine validity of the claim. RIAA is a 3rd party authorized to act on behalf of the copyright holder, so they are allowed to send a DMCA takedown. Also the takedown is claiming DMCA section 1201, which is for bypassing DRM, not distributing infringing material. tl;dr there probably isn't anything inherently wrong with the RIAA's claim, and there's definitely nothing wrong with github's response. As for DMCAing an oil producer's repository for something unrelated to DMCA, github would still take it down, but it's quite likely that you'd end up with a lawsuit from the oil company for damages. As long as GitHub is run by a US company, it doesn't matter how advocating they are of open source, nothing would change...they'd still take down the repository after receiving a DMCA takedown request. And the last point, my understanding is apple wasn't actually required to assist the FBI, but american companies are required to follow DMCA.

by dannyw 6y ago

chews 6y ago

"It’s my understand(sp) that service providers do not need to comply with illegal requests." winner winner chicken dinner.

jackhughman 6y ago
But a takedown is required in the course of due process until some leaning can be established as to legality and validity of the request. It's really, really, really stupid, because it presumes guilt before innocence, standing in opposition to most general legal principles. If anything, Microsoft via Github would do well to assert itself by not conforming, forcing the court to examine the DMCA's legality and process.
- CRConrad 6y ago
  > It's really, really, really stupid, because it presumes guilt before innocence, standing in opposition to most general legal principles. So shouldn't the next US-American recipient of one of these notices refuse to comply on the grounds that the law is unconstitutional?
  - sizt 6y ago
    Under the common law, actual possession is seen as prima facie evidence of ownership — i.e., possession creates a presumption of ownership, but that presumption is rebuttable. The U.S. Court of Appeals for the Fourth Circuit in 2006 begins a discussion of possession with: "That possession is nine-tenths of the law is a truism hardly bearing repetition. Statements to this effect have existed almost as long as the common law itself." Willcox v. Stroup, 467 F.3d 409, 412 (4th Cir. 2006). It doesn’t mean whoever possesses something is automatically the owner. It means that absent evidence of superior title, possession generally suffices to show ownership.
- sam0x17 6y ago
  With Microsoft's resources they could easily ignore the DMCA takedown and battle it out in the courts. But Microsoft is a paying member of the RIAA soooooooo
  - zaarn 6y ago
    Why would Microsoft stand up to a DMCA takedown from any organization to a random github repo that they can't immediately tell is being wrongly taken down? Unless you pay GitHub the legal fees, no organization would lift a finger.
    - sebow 6y ago
      Most people don't expect Github/Gitlab/Microsoft/etc. to stand up necessarily in courts against such takedowns.They would just like at least a notification or just an appeal process.(See the mechanism that Google has in place on Youtube) Frankly this youtube-dl scandal alongside many others(ad blockers, script blockers,etc) is just one of a lengthy series of events from the dinosaurs of the internet that battle for revenue that is immensely falling. This is mostly about money and nothing else. I would also like to say that i think 95%+ of the applications of DMCA are on content that is palpable and makes sense "of taking down", not some software or code that nobody really can have a monopoly on.They therefore applied this law not in the spirit it was intended to, but in some disregarding fashion of how internet software & communications work. By the same logic any tool that is used to download/stream internet content is vulnerable, and when you take a closer look that might actually include a lot of software if not the majority of all software.

jfrunyon 6y ago

DMCA takedowns do not need to be from the copyright holder themselves. They can be from ANY authorized agent of the copyright holder, like a lawyer, or ... the rights-enforcement association to which the copyright holder belongs. ETA: And yes, if you submitted a DMCA takedown which has any reasonable chance (from the recipient/provider's perspective) of being valid, it would get taken down. Otherwise, the provider takes on their customer's liability. Very few (and zero free) providers are willing to do so.

thaumasiotes 6y ago
>> Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. > DMCA takedowns do not need to be from the copyright holder themselves. They can be from ANY authorized agent of the copyright holder I think it's clear that "RIAA is not the copyright holder" is shorthand for "no member of the RIAA is the copyright holder". Even if you don't accept that, you can easily deduce that no member of the RIAA is the copyright holder by looking at the immediately following claim, "there is no infringing material". Given that there is no infringing material, it can't really matter whose agent the RIAA purports to be.
- CrazyStat 6y ago
  The youtube-dl DMCA notice does not allege copyright infringement (section 512 of the DMCA) but rather breaking DRM (section 1201 of the DMCA). Arguing that there is no [copyright-]infringing material is completely missing the point. The EFF has a write-up about it [1]. [1] https://www.eff.org/deeplinks/2020/11/github-youtube-dl-takedown-isnt-just-problem-american-law https://www.eff.org/deeplinks/2020/11/github-youtube-dl-take...
  - thaumasiotes 6y ago
    I'm not disputing that. I'm saying jfrunyon's comment is stupid.
    - deleted 6y ago

avsteele 6y ago

According to the EFF link below they don't need to be a holder. If the software is for breaking locks they can submit a take down notice under section 1201. https://www.eff.org/deeplinks/2020/11/github-youtube-dl-takedown-isnt-just-problem-american-law https://www.eff.org/deeplinks/2020/11/github-youtube-dl-take...

marcan_42 6y ago
It's a notice under the provisions of the DMCA, but it's not a "DMCA takedown". What we call DMCA takedowns, coloquially, with the whole counter notification process etc, are notices submitted under Title II. That title deals with copyright infringement, not anti-circumvention. That means treating such notices as a typical DMCA notice, as GitHub has done, is incorrect. GitHub may well choose to follow the takedown if it considers it valid and the repo infringing, but what they've done is treat it as a copyright takedown. And that is clearly, unambiguously wrong, as it goes against their own DMCA policy, linked from the youtube-dl repo's disabled notice, which says: > The DMCA notice and takedown process should be used only for complaints about copyright infringement. Notices sent through our DMCA process must identify copyrighted work or works that are allegedly being infringed. So yes, GitHub messed up here. That doesn't mean they shouldn't have taken down youtube-dl, but they way they went about doing it is wrong. You'll notice that the EFF, in that article, never goes into the details of the takedown process that happened. They never said what GitHub did was proper. They are just talking about the anti-circumvention law in general.
- jfrunyon 6y ago
  The key here is that if they DIDN'T comply with it, the RIAA might sue them. Even if they were to win it (because a judge determines the takedown provisions don't cover it or for another reason), they'd be in for a costly legal battle. Moreover, without the Title II provisions, they would be liable for having distributed the circumvention in the past! On the other hand, if they DO comply with it, the RIAA is extremely unlikely to sue them, whether this is covered by the safe-harbor provisions of Title II or not.
  - 6y ago

mytailorisrich 6y ago

Complying with DMCA notices covers the rear-end of service providers. Therefore there is only risk and no benefit for a service provider not to comply with any notices they might receive.

onion2k 6y ago

What's the penalty for failing to comply with a takedown that does turn out to be legal? That's the risk that Github has to consider.

ponker 6y ago

Microsoft is an enterprise software company that suckles at the teat of government invoicing to the tune of tens of billions of dollars, they are nothing like Apple in this regard.

gamblor956 6y ago

Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. Almost all of the lawyers at HN, and the lawyers at the EFF, and the guy at Popehat, are all generally in agreement that there was nothing wrong with what the RIAA or what GitHub did. It should tell you something when the people most in a position to evaluate the situation don't see anything amiss.

jfrunyon 6y ago
Especially when almost all of those people are staunchly against the anti-circumvention provisions.
- tankenmate 6y ago
  It would seem your issue is with the DMCA, if so then the way to fix it is to change the legislation; lobby the necessary politicians to get the law changed. If you object to people following the law because you feel they don't hold the same views on the matter at hand, the point is moot, unless of course you feel they should break the law. Which leads back to, if you don't like a law then lobby for it to be changed.
  - alien1993 6y ago
    Problem solved people.
  - xtian 6y ago
    Which laws have you gotten changed through lobbying?
    - barkingcat 6y ago
      Isn't this exactly how laws are changed in the US? Lobbying has more to do with how the country works than voting.
      - 6y ago

Cthulhu_ 6y ago

If youtube-dl disagrees with the takedown, they need to take it up with the RIAA. If the RIAA - or a judge - decides in favor of youtube-dl, Github can restore the repository. This is how things work; it may not be how you'd like things to work, but I doubt you've ever been involved in any part of a DMCA takedown request (as the sender, receiver, or the person that had their stuff taken down).

ivanche 6y ago
Textbook example of "guilty until proven innocent"...

dragonwriter 6y ago

> Some people think RIAA’s DMCA notice is not legally valid, arguing RIAA is not the copyright holder and there is no infringing material. That doesn't make the notice facially invalid, if they have made the required representations (which they have, as they have alleged specific infringement of their works on a contributory infringement theory as well as alleging that the works in question violated DMCA anticircumvention provisions, and particularly alleging that the combination of the anticircumvention violation plus the specific identification of works of RIAA-represented owners as targets was the basis for the contributory infringement claim.) Unless Github wants to expose itself to both upfront costs and potential liability by judging the details of the legal theories and fact claims in facially-valid DMCA takedown notices, it makes sense for them to react to facially-valid notices and wait for a facially-valid counter-notice before restoring user content.

qw3rty01 6y ago

(IANAL) It doesn't matter if people think RIAA's DMCA isn't legally valid (or even if it isn't actually valid), Github still has to follow section 512 of the DMCA as a service provider, and it's not their responsibility to determine validity of the claim. RIAA is a 3rd party authorized to act on behalf of the copyright holder, so they are allowed to send a DMCA takedown. Also the takedown is claiming DMCA section 1201, which is for bypassing DRM, not distributing infringing material. tl;dr there probably isn't anything inherently wrong with the RIAA's claim, and there's definitely nothing wrong with github's response. As for DMCAing an oil producer's repository for something unrelated to DMCA, github would still take it down, but it's quite likely that you'd end up with a lawsuit from the oil company for damages. As long as GitHub is run by a US company, it doesn't matter how advocating they are of open source, nothing would change...they'd still take down the repository after receiving a DMCA takedown request. And the last point, my understanding is apple wasn't actually required to assist the FBI, but american companies are required to follow DMCA.