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The story I don’t see being discussed is that Github is now engaged in the same kind of rotten behavior as YouTube.

by projectileboy 5y ago

IshKebab 5y ago
GitHub are legally required to do this.
- dragonwriter 5y ago
  No, they aren’t. If there is no merit to a copyright claim, there is no vicarious liability for Github to be insulated from by the DMCA safe harbor. It’s cheaper and less risky not to evaluate the merits of DMCA notices and just to blindly execute them, but it is erroneous to say that thet are legally required to act in that manner.
  - mon77 5y ago
    Yes, they are, and yes, there is. The claiming and counterclaiming process is independent of the merit of copyright under DMCA. Budget and risk are not part of the equation. Evaluating copyright applicability cannot be part of the equation; it’s not your content. The law specifies almost exactly what you must do with some vague concepts for interpretation (like expedient). If you don’t do those things even on an obviously bogus complaint that is otherwise properly formed, you stop having safe harbor, because those disputes are intended by the law to be handled in court and not your legal department. It’s genuinely not complicated (read OCILLA) and you should be annoyed with the law for this situation, not its subjects. You are sharing an opinion disguised as fact. It’s a wrong one, but I get why you’d conclude it. Source: Write DMCA policy for UGC.
    - dragonwriter 5y ago
      > The claiming and counterclaiming process is independent of the merit of copyright under DMCA. The DMCA process isn’t a mandatory process, it is a process to receive safe harbor from whatever liability would otherwise exist. If there would be no liability independent of the DMCA safe harbor, there is no mandate to follow the safe harbor process. (If you disagree with this, here’s what you need to do, identify—with citation to supporting law—the available legal remedy that can be imposed on a provider who declines to adhere to the DMCA safe harbor process where there is no underlying copyright liability.) Service providers make a choice to follow the notice process blindly as a risk management measure, not because it is legally required to do so. (Which is also why the counternotice process is often less fully implemented, or why, e.g., Youtube has its own hyper-aggressive policy for certain content that goes beyond the DMCA process and lacks counternotice opportunity—the counternotice process is just as much part of the DMCA process, but because providers are able to structure their relationship with users in a way which avoids having any liability for takedowns which would benefit from a safe harbor, they can safely ignore that process.) Source: the actual text of the DMCA safe harbor provision, and the reason it is called a “safe harbor”. > You are sharing an opinion disguised as fact No, you are engaging in standard industry blameshifting by misrepresenting risk management strategy adopted responding to incentives created by a law with an actual legal mandate.
      - arcturus17 5y ago
        If a person who > Write[s] DMCA policy for UGC Is purposefully trying to confuse your argument, or worse yet, doesn't know any of it, that may be part of the problem
      - kelnos 5y ago
        > If there would be no liability independent of the DMCA safe harbor, there is no mandate to follow the safe harbor process. The problem is that GitHub doesn't get to decide that. If they give up their option for safe harbor by not following the DMCA takedown process, the company claiming copyright can sue them. Even if they don't win, defending these things costs time and money. I don't blame GitHub for just not wanting to deal with all that. You seem to disagree, and believe that GH should stand up and open themselves to legal liability for every random user on their site, which I don't think is practical or reasonable to expect of a for-profit corporation. The remedy for this is simple: we need to stop relying on centralized solutions for things like this. There are a variety of options for this: Tor hidden services, IPFS, hosting outside the copyright holder's jurisdiction, etc. None of them are perfect, but relying on a for-profit corporation to host your even-remotely-legally-questionable material, you're setting yourself up to fail.
        dragonwriter 5y ago
        > The problem is that GitHub doesn't get to decide that. If they give up their option for safe harbor by not following the DMCA takedown process, the company claiming copyright can sue them. The company can sue them in either case. The DMCA safe harbor is a particular easy basis for a motion to dismiss, but other easy bases may exist in specific cases. Blindly following the DMCA safe harbor process is a sensible risk mitigation strategy, and exactly what the law is structured to promote, but it is very explicitly not a mandate. > I don't blame GitHub for just not wanting to deal with all that. You seem to disagree You are a mistaking a fact statement about what the law does and doesn’t require with a normative statement about what Github should do.
I_Byte 5y ago
I recommended checking out Tom Scott’s video on DMCA (0). It’s 40 minutes long and rather YouTube centric however it paints a very clear picture as to why these companies are engaging in a seemingly broken practice. It’s not because they want to, it’s because they are legally required to do so. (0) - https://youtube.com/watch?v=1Jwo5qc78QU https://youtube.com/watch?v=1Jwo5qc78QU
- kelnos 5y ago
  YouTube goes very much above and beyond what the DMCA requires, and favors the interests of the big corporate copyright holders over smaller creators. I imagine they do this because of their settlement with Viacom[0] where they likely bent over backwards to avoid further appeals and lawsuits. Viacom likely said "regardless of how this goes, we and other copyright holders will sue YouTube off the internet unless you build a system that proactively takes down everything even remotely potentially infringing without us having to notify you of anything". And Google caved. Don't get me wrong, the DMCA is still overall a bad law (though, to be honest, I think the copyright takedown process is the least bad part of it), but Google is not doing what they do because of the DMCA. [0] https://en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y.... -- notably, no money changed hands as a part of the settlement, but other terms were not disclosed.
  - NaturalPhallacy 5y ago
    The DMCA was written by lawyers for lawyers. And you know who can afford lawyers? Big corporate copyright holders.

The story I don’t see being discussed is that Github is now engaged in the same kind of rotten behavior as YouTube.

IshKebab 5y ago

GitHub are legally required to do this.

dragonwriter 5y ago
No, they aren’t. If there is no merit to a copyright claim, there is no vicarious liability for Github to be insulated from by the DMCA safe harbor. It’s cheaper and less risky not to evaluate the merits of DMCA notices and just to blindly execute them, but it is erroneous to say that thet are legally required to act in that manner.
- mon77 5y ago
  Yes, they are, and yes, there is. The claiming and counterclaiming process is independent of the merit of copyright under DMCA. Budget and risk are not part of the equation. Evaluating copyright applicability cannot be part of the equation; it’s not your content. The law specifies almost exactly what you must do with some vague concepts for interpretation (like expedient). If you don’t do those things even on an obviously bogus complaint that is otherwise properly formed, you stop having safe harbor, because those disputes are intended by the law to be handled in court and not your legal department. It’s genuinely not complicated (read OCILLA) and you should be annoyed with the law for this situation, not its subjects. You are sharing an opinion disguised as fact. It’s a wrong one, but I get why you’d conclude it. Source: Write DMCA policy for UGC.
  - dragonwriter 5y ago
    > The claiming and counterclaiming process is independent of the merit of copyright under DMCA. The DMCA process isn’t a mandatory process, it is a process to receive safe harbor from whatever liability would otherwise exist. If there would be no liability independent of the DMCA safe harbor, there is no mandate to follow the safe harbor process. (If you disagree with this, here’s what you need to do, identify—with citation to supporting law—the available legal remedy that can be imposed on a provider who declines to adhere to the DMCA safe harbor process where there is no underlying copyright liability.) Service providers make a choice to follow the notice process blindly as a risk management measure, not because it is legally required to do so. (Which is also why the counternotice process is often less fully implemented, or why, e.g., Youtube has its own hyper-aggressive policy for certain content that goes beyond the DMCA process and lacks counternotice opportunity—the counternotice process is just as much part of the DMCA process, but because providers are able to structure their relationship with users in a way which avoids having any liability for takedowns which would benefit from a safe harbor, they can safely ignore that process.) Source: the actual text of the DMCA safe harbor provision, and the reason it is called a “safe harbor”. > You are sharing an opinion disguised as fact No, you are engaging in standard industry blameshifting by misrepresenting risk management strategy adopted responding to incentives created by a law with an actual legal mandate.
    - arcturus17 5y ago
      If a person who > Write[s] DMCA policy for UGC Is purposefully trying to confuse your argument, or worse yet, doesn't know any of it, that may be part of the problem
    - kelnos 5y ago
      > If there would be no liability independent of the DMCA safe harbor, there is no mandate to follow the safe harbor process. The problem is that GitHub doesn't get to decide that. If they give up their option for safe harbor by not following the DMCA takedown process, the company claiming copyright can sue them. Even if they don't win, defending these things costs time and money. I don't blame GitHub for just not wanting to deal with all that. You seem to disagree, and believe that GH should stand up and open themselves to legal liability for every random user on their site, which I don't think is practical or reasonable to expect of a for-profit corporation. The remedy for this is simple: we need to stop relying on centralized solutions for things like this. There are a variety of options for this: Tor hidden services, IPFS, hosting outside the copyright holder's jurisdiction, etc. None of them are perfect, but relying on a for-profit corporation to host your even-remotely-legally-questionable material, you're setting yourself up to fail.
      - dragonwriter 5y ago
        > The problem is that GitHub doesn't get to decide that. If they give up their option for safe harbor by not following the DMCA takedown process, the company claiming copyright can sue them. The company can sue them in either case. The DMCA safe harbor is a particular easy basis for a motion to dismiss, but other easy bases may exist in specific cases. Blindly following the DMCA safe harbor process is a sensible risk mitigation strategy, and exactly what the law is structured to promote, but it is very explicitly not a mandate. > I don't blame GitHub for just not wanting to deal with all that. You seem to disagree You are a mistaking a fact statement about what the law does and doesn’t require with a normative statement about what Github should do.

I_Byte 5y ago

I recommended checking out Tom Scott’s video on DMCA (0). It’s 40 minutes long and rather YouTube centric however it paints a very clear picture as to why these companies are engaging in a seemingly broken practice. It’s not because they want to, it’s because they are legally required to do so. (0) - https://youtube.com/watch?v=1Jwo5qc78QU https://youtube.com/watch?v=1Jwo5qc78QU

kelnos 5y ago
YouTube goes very much above and beyond what the DMCA requires, and favors the interests of the big corporate copyright holders over smaller creators. I imagine they do this because of their settlement with Viacom[0] where they likely bent over backwards to avoid further appeals and lawsuits. Viacom likely said "regardless of how this goes, we and other copyright holders will sue YouTube off the internet unless you build a system that proactively takes down everything even remotely potentially infringing without us having to notify you of anything". And Google caved. Don't get me wrong, the DMCA is still overall a bad law (though, to be honest, I think the copyright takedown process is the least bad part of it), but Google is not doing what they do because of the DMCA. [0] https://en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y.... -- notably, no money changed hands as a part of the settlement, but other terms were not disclosed.
- NaturalPhallacy 5y ago
  The DMCA was written by lawyers for lawyers. And you know who can afford lawyers? Big corporate copyright holders.