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Rather interesting that GitHub decided to restore access 1 day after receiving the EFF's counter notice, instead of waiting 10 days. As a brief legal recap, in

Rather interesting that GitHub decided to restore access 1 day after receiving the EFF's counter notice, instead of waiting 10 days. As a brief legal recap, in 1998 the DMCA added §512 [1] to US copyright law, which established a mechanism for shielding 'service providers' from liability for content posted by users (known as 'safe harbor'), but only as long as they follow formal procedures (known as 'DMCA takedown') to respond 'expeditiously' to remove content when they receive a notification claiming infringement, but also to restore access "not less than 10, nor more than 14, business days" after receiving a counter notification claiming the removal was a mistake. In the post, GitHub implied they removed the youtube-dl repo after receiving the RIAA's formal takedown notice in order to 'comply with laws', and the law also required them to restore access after receiving the EFF's formal counter notice. However, the counter notice was sent yesterday and they restored access 1 day later, not waiting the legal minimum of 10 days. In restoring access so quickly GitHub isn't fully complying with §512, opening themselves up to liability if the RIAA decides to pursue legal action. Perhaps a symbolic gesture to restore access a couple weeks before they would have been legally required to restore access anyway, but nonetheless interesting to see their willingness to set aside §512 safe harbor protections in the future if their reading of facts suggest a takedown claim doesn't have merit. [1] https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512

akiselev 6y ago
> Perhaps a symbolic gesture to restore access a couple weeks before they would have been legally required to restore access anyway, but nonetheless interesting to see their willingness to set aside §512 safe harbor protections in the future if their reading of facts suggest a takedown claim doesn't have merit. Do the DMCA legal requirements differentiate between good faith and tortuous takedowns? Meaning, is that 10-14 day range set in stone even if Github believes that the request was flagrantly over reaching or do they lose safe harbor protections right off the bat? Has this issue been litigated enough that there would be clear precedent?
1vuio0pswjnm7 6y ago
The youtube-dl incident was not a section 512 takedown. There was no infringing material, i.e., content, to remove. The RIAA letter made no mention of section 512, referring instead to section 1201. Neither did this letter from EFF refer to section 512. This was not a section 512 takedown. The rules in section 512 do not apply.
- dredmorbius 6y ago
  Absolutely this. https://joindiaspora.com/posts/808cf690f8e801381778002590d8e506 https://joindiaspora.com/posts/808cf690f8e801381778002590d8e... https://news.ycombinator.com/item?id=24888234 https://news.ycombinator.com/item?id=24888234
- wgjordan 6y ago
  The 'copyright violations' section of the RIAA letter (regarding the unit tests) was clearly a standard §512 notice alleging copyright infringement. Even if §512 wasn't explicitly mentioned, it's still a legally effective notification of claimed infringement. > The rules in section 512 do not apply. Assuming you're referring only to the §1201 'anticircumvention' portion of the claim (the main focus of the GitHub post), whether this portion is also subject to §512 rules is a little more ambiguous. §1201 defines a trafficking violation separate from copyright infringement itself, but some court rulings have established a requirement that §1201 violations establish a 'nexus' to copyright infringement in order to be valid. If this requirement holds, §512 safe harbor protections could indirectly cover §1201 claims as well. However, because there's a circuit split on the issue, unless GitHub is sued on this exact point it's impossible to say for sure what rules would apply in this specific case. In any case, GitHub handled the 1201 takedown claim in reference to its established, documented process in handling takedown notices and counter notices [1], except for the fact that it didn't wait 10-14 days after receiving a counter notice before re-enabling this content. The deviation from their published policy is still itself noteworthy. [1] https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-counter-notice https://docs.github.com/en/free-pro-team@latest/github/site-...
  - dragonwriter 6y ago
donmcronald 6y ago
I'm guessing they'd rather fight a battle over youtube-dl than something like popcorn time. Maybe the intentionally pushed the limits a bit.
wgjordan 6y ago
After reading the EFF's letter a little more closely, I realize now that it wasn't even a formal DMCA counter notice representing the repository owners, just an informal legal rebuttal of the original claims. Oops. So GitHub wasn't legally required to restore access at all even after 10-14 days, since no official counter notice was ever received. That makes it more significant (not merely symbolic) that GitHub chose to short-circuit its DMCA process to restore access and open themselves up to liability in this case.
- colejohnson66 6y ago
  Not true. The first sentence of the first paragraph make mention that the EFF is representing the youtube-dl developers. An attorney-client relationship. > The Electronic Frontier Foundation represents the current maintainers of the youtube-dl software utility, a free software project that uses GitHub as a home for development.
  - wgjordan 6y ago
    Thanks for pointing out the mention of representation. However the letter still lacked two required elements for it to be an effective formal counter notice: - §512(g)(3)(C): A 'statement under penalty of perjury' that the material was removed by mistake. - §512(g)(3)(D): A statement 'consent[ing] to the jurisdiction of Federal District Court for the judicial district in which the address is located', and to 'accept service of process from the person who provided notification'. These are also noted as requirements in GitHub's counter notice policy [1] numbers 4 and 5. I think it's also telling that GitHub never referred to this letter anywhere as a 'counter notice', only mentioning it as 'new information' they received about the project. [1] https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-counter-notice#your-counter-notice-must https://docs.github.com/en/free-pro-team@latest/github/site-...

akiselev 6y ago

> Perhaps a symbolic gesture to restore access a couple weeks before they would have been legally required to restore access anyway, but nonetheless interesting to see their willingness to set aside §512 safe harbor protections in the future if their reading of facts suggest a takedown claim doesn't have merit. Do the DMCA legal requirements differentiate between good faith and tortuous takedowns? Meaning, is that 10-14 day range set in stone even if Github believes that the request was flagrantly over reaching or do they lose safe harbor protections right off the bat? Has this issue been litigated enough that there would be clear precedent?

1vuio0pswjnm7 6y ago

The youtube-dl incident was not a section 512 takedown. There was no infringing material, i.e., content, to remove. The RIAA letter made no mention of section 512, referring instead to section 1201. Neither did this letter from EFF refer to section 512. This was not a section 512 takedown. The rules in section 512 do not apply.

dredmorbius 6y ago
Absolutely this. https://joindiaspora.com/posts/808cf690f8e801381778002590d8e506 https://joindiaspora.com/posts/808cf690f8e801381778002590d8e... https://news.ycombinator.com/item?id=24888234 https://news.ycombinator.com/item?id=24888234
wgjordan 6y ago
The 'copyright violations' section of the RIAA letter (regarding the unit tests) was clearly a standard §512 notice alleging copyright infringement. Even if §512 wasn't explicitly mentioned, it's still a legally effective notification of claimed infringement. > The rules in section 512 do not apply. Assuming you're referring only to the §1201 'anticircumvention' portion of the claim (the main focus of the GitHub post), whether this portion is also subject to §512 rules is a little more ambiguous. §1201 defines a trafficking violation separate from copyright infringement itself, but some court rulings have established a requirement that §1201 violations establish a 'nexus' to copyright infringement in order to be valid. If this requirement holds, §512 safe harbor protections could indirectly cover §1201 claims as well. However, because there's a circuit split on the issue, unless GitHub is sued on this exact point it's impossible to say for sure what rules would apply in this specific case. In any case, GitHub handled the 1201 takedown claim in reference to its established, documented process in handling takedown notices and counter notices [1], except for the fact that it didn't wait 10-14 days after receiving a counter notice before re-enabling this content. The deviation from their published policy is still itself noteworthy. [1] https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-counter-notice https://docs.github.com/en/free-pro-team@latest/github/site-...
- dragonwriter 6y ago

donmcronald 6y ago

I'm guessing they'd rather fight a battle over youtube-dl than something like popcorn time. Maybe the intentionally pushed the limits a bit.

wgjordan 6y ago

After reading the EFF's letter a little more closely, I realize now that it wasn't even a formal DMCA counter notice representing the repository owners, just an informal legal rebuttal of the original claims. Oops. So GitHub wasn't legally required to restore access at all even after 10-14 days, since no official counter notice was ever received. That makes it more significant (not merely symbolic) that GitHub chose to short-circuit its DMCA process to restore access and open themselves up to liability in this case.

colejohnson66 6y ago
Not true. The first sentence of the first paragraph make mention that the EFF is representing the youtube-dl developers. An attorney-client relationship. > The Electronic Frontier Foundation represents the current maintainers of the youtube-dl software utility, a free software project that uses GitHub as a home for development.
- wgjordan 6y ago
  Thanks for pointing out the mention of representation. However the letter still lacked two required elements for it to be an effective formal counter notice: - §512(g)(3)(C): A 'statement under penalty of perjury' that the material was removed by mistake. - §512(g)(3)(D): A statement 'consent[ing] to the jurisdiction of Federal District Court for the judicial district in which the address is located', and to 'accept service of process from the person who provided notification'. These are also noted as requirements in GitHub's counter notice policy [1] numbers 4 and 5. I think it's also telling that GitHub never referred to this letter anywhere as a 'counter notice', only mentioning it as 'new information' they received about the project. [1] https://docs.github.com/en/free-pro-team@latest/github/site-policy/guide-to-submitting-a-dmca-counter-notice#your-counter-notice-must https://docs.github.com/en/free-pro-team@latest/github/site-...