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>Regarding GitHub, it is sad that they took down the repository at all. It’s a well-known pattern: platforms rather comply with such requests than risking litig

by oehpr 6y ago

>Regarding GitHub, it is sad that they took down the repository at all. It’s a well-known pattern: platforms rather comply with such requests than risking litigation, requiring projects to invest time and money to fund lawyers themselves (or hope for an association such as the EFF to pick up their case). The moment they published the request and took down the repositories, many experts immediately raised concerns that the request itself is illegal. It remains questionable why GitHub’s legal team didn’t recognize this. ok... am I crazy? I thought when someone sends a DMCA request to you, the platform, that you are required to take the content down and wait for a counter notice from that contents author. The legality of the message is not your problem. You receive the DMCA, you take the content down, if you get a counter claim, you put it back up, the two parties go to court. If that's correct, then can you really criticize github for following an odious law? Whether we like it or not, they are bound by these requirements.

colejohnson66 6y ago
You’re correct. However, you only have to take down valid claims. If I issue a take down for a music video owned by, say, WMG, Google doesn’t have to listen if they can see I don’t have the right to. That’s where people are coming from: they’re saying the takedown was never valid, so GitHub (Microsoft) didn’t have to listen to it. The big problem with that is: if GitHub refused to take it down but the RIAA prevailed in court, GitHub would lose their “safe harbor” protections. The DMCA is heavily tilted in favor of the supposed rights holder, and GitHub really did have no choice in that situation. It’s messed up, but it’s the reality of the laws of the land. There’s also the issue of people who are mistaken and think it was a section 512 notice (direct copyright infringement) when it wasn’t. It was a section 1201 one (DRM circumvention). We can argue all day about whether it’s DRM circumvention or not, but the fact of the matter is: there was obfuscation of some sort, and it wouldn’t be hard to convince a judge that that counts as DRM. GitHub erred on the side of caution here.
einpoklum 6y ago
> If that's correct, then can you really criticize github for following an odious law? You can criticize them and you should.It is their choice to run GitHub in a US jurisdiction. Many other places in the world are not as repressive. (Plus, I'm betting there's at least some mechanism to reject frivolous DMCA takedown requests immediately.)
- colejohnson66 6y ago
  If Microsoft moved GitHub out of the US, Microsoft is still a US company and subject to their laws. Microsoft could move out, but the Long Arm of the US Law(tm) won’t care if the executives live in the US.
  - einpoklum 6y ago
    1. So GitHub should not have been sold to Microsoft. 2. Microsoft could spin off GitHub into a separate, non-US entity, outside its legal control for purposes of DMCA enforcement. Of course, it obviously won't do that, since it doesn't help the bottom line.
zucker42 6y ago
> I thought when someone sends a DMCA request to you, the platform, that you are required to take the content down and wait for a counter notice from that contents author. This is almost correct. GitHub could refuse to take it down and in doing so accept liability for any copyright infringement that exists. If the repository is not infringing (which in this case there's a solid chance it's not), then GitHub is doing nothing wrong. Of course, since the penalties for copyright infringement are so high and defending suits would not be worth it for GitHub, they are effectively required to take it down.

by oehpr 6y ago

colejohnson66 6y ago

You’re correct. However, you only have to take down valid claims. If I issue a take down for a music video owned by, say, WMG, Google doesn’t have to listen if they can see I don’t have the right to. That’s where people are coming from: they’re saying the takedown was never valid, so GitHub (Microsoft) didn’t have to listen to it. The big problem with that is: if GitHub refused to take it down but the RIAA prevailed in court, GitHub would lose their “safe harbor” protections. The DMCA is heavily tilted in favor of the supposed rights holder, and GitHub really did have no choice in that situation. It’s messed up, but it’s the reality of the laws of the land. There’s also the issue of people who are mistaken and think it was a section 512 notice (direct copyright infringement) when it wasn’t. It was a section 1201 one (DRM circumvention). We can argue all day about whether it’s DRM circumvention or not, but the fact of the matter is: there was obfuscation of some sort, and it wouldn’t be hard to convince a judge that that counts as DRM. GitHub erred on the side of caution here.

einpoklum 6y ago

> If that's correct, then can you really criticize github for following an odious law? You can criticize them and you should.It is their choice to run GitHub in a US jurisdiction. Many other places in the world are not as repressive. (Plus, I'm betting there's at least some mechanism to reject frivolous DMCA takedown requests immediately.)

colejohnson66 6y ago
If Microsoft moved GitHub out of the US, Microsoft is still a US company and subject to their laws. Microsoft could move out, but the Long Arm of the US Law(tm) won’t care if the executives live in the US.
- einpoklum 6y ago
  1. So GitHub should not have been sold to Microsoft. 2. Microsoft could spin off GitHub into a separate, non-US entity, outside its legal control for purposes of DMCA enforcement. Of course, it obviously won't do that, since it doesn't help the bottom line.

zucker42 6y ago

> I thought when someone sends a DMCA request to you, the platform, that you are required to take the content down and wait for a counter notice from that contents author. This is almost correct. GitHub could refuse to take it down and in doing so accept liability for any copyright infringement that exists. If the repository is not infringing (which in this case there's a solid chance it's not), then GitHub is doing nothing wrong. Of course, since the penalties for copyright infringement are so high and defending suits would not be worth it for GitHub, they are effectively required to take it down.