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> I have taken fair use into consideration. This is always a fucking lie, and I wish we (as a community) would band together to make it more painful for giant

> I have taken fair use into consideration. This is always a fucking lie, and I wish we (as a community) would band together to make it more painful for giant companies to just spam DMCA takedowns as part of their DRM strategy. Ignoring the entire issue with the fact that there probably wasn't any copyrighted material in the repo to begin with and that code is speech, and speech is protected in the US - in other words, taking the most charitable (for corporations) interpretation of the DMCA and assuming that neither of those holds true, a fair use provision still should hold! Circumvention for purposes of transposing your media to a different platform (time-shifting, archival) are already explicitly allowed per USC and rulings (if I'm not mistaken). I don't have the energy to type more. All in all, the DMCA needs some fangs pulled. Or fangs added, in the "perjury" category for entities that send out bad faith takedowns for code that they don't like. Has anyone ever been held legally responsible for a bad-faith DMCA takedown request? Don't think I've seen it.

lnxg33k1 5y ago
As Italian, I think you should take my words with mistrust, but as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen That said, I guess it was shortsighted from the founding father but I guess at the time people would be often oppressed by governments not by neighbors and friends and I think this is something we need to solve as it's the challenge of our times
- michaelmrose 5y ago
  > as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen Free speech by anyone to anyone is protected from government restriction. It is the government that is forbidden from punishing speech not the government that must be party to the speech else free speech would have nearly zero meaning. > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. What is oft said is that the first amendment doesn't protect you from non governmental consequences for your speech. For example you can be fired for your speech but you may not be imprisoned nor silenced by the government. When a private entity avails itself of remedies provided by the government to limit or punish your speech your constitutional rights are infringed because it is the government acting to limit your speech even if its on behalf of a claimant.
- schoen 5y ago
  What you describe isn't exactly the law in the U.S., but it gets at some real things: (1) there is a separate "right of petition" in the first amendment in parallel with the rights of freedom of speech and press; the right of petition relates to asking the government to change its behavior; (2) the courts have a notion of "core political speech", which is some of the most strongly protected speech; and (3) the courts have a different notion of "commercial speech", which is some of the least-protected speech.
- ashtonkem 5y ago
  > as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen This is mostly true. But there are some special exemptions. The real gotcha is that the courts have generally taken a dim view towards using the courts themselves to restrict someone’s speech. The Supreme Court basically doesn’t want (or maybe didn’t want given their recent changes) congress to launder free speech violations to civil lawsuits enforced by the courts. That’s kind of a neat trick that you’d generally want to suppress, which if I understand is why there are first amendment issues around defamation lawsuits, despite being purely between individuals. How does this work with the DMCA? I dunno. But to my (non lawyer) eyes it does seem kinda like it effectively criminalizes speech, and I wonder if it should stand up to judicial scrutiny.
- User23 5y ago
  > I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen It depends. For example the 1st amendment protects a great deal of speech that in other countries would be slander, even though in that case the plaintiff is another civil entity and not the government.
not2b 5y ago
Unfortunately the DMCA also covers technology that works around DRM, not just copyright violation. Anyone wanting to share any anti-DRM software is advised to use a non-US site; GitHub probably doesn't have a choice about things like this once someone reports it. The notice didn't claim copyright violation. It claimed (accurately) that this code worked around their DRM.
- ryukafalz 5y ago
  Except it started with: > Yes, I am the copyright holder.
  - not2b 5y ago
    Read the rest. In context they are saying that the code allows people to circumvent the DRM and access their copyrighted works. So it's an anti-DRM claim not an ordinary copyright claim.
    - im3w1l 5y ago
      I think there are two separate issues here. Is the code illegal? Yes* Is the takedown notice correct and truthful? No* *Ianal etc.
- kmeisthax 5y ago
  By "non-US" you probably mean "non-WTO". WIPO/TRIPS was specifically used to policy-launder DMCA 1201 into US law despite the objections of the tech community in the US. EU law has very similar provisions and I'm told "copypaste 1201 language into your local law" is a common ask during USTR negotiations.
  - not2b 5y ago
    I'm not competent to advise people on which countries are "safe" for this purpose, perhaps others know.
    - 5y ago
kmeisthax 5y ago
So, the thing about circumvention exceptions is that... 1. There is no general exception for format shifting. If there was, DMCA 1201 would have zero legal weight. 2. Even if there was, it would not materially impact the legal status of this DMCA 512 takedown request This is because DMCA 1201 circumvention exceptions only apply to half of the law. Section 1201 renders two different acts illegal: 1. You can't circumvent DRM, unless for specific purposes. 2. You can't tell anyone how to circumvent DRM, regardless of purpose. This is the sort of violation being alleged here. Depending on how you look at it, either Congress assumed a black market would exist for DRM circumvention technology anyway; or they assumed people who need lawful circumvention would in-house everything and destroy it when they no longer needed it. That's the sort of question a court might have to interpret if someone was a bit more careful than, say, publishing the DRM unlock straight onto GitHub. But that's not this case. In this case, the law does not facilitate any fair use argumentation whatsoever. It's not a lie, the DMCA 1201 exception process is just hilariously toothless.
- R0b0t1 5y ago
  You're not allowed to circumvent for format shifting, but you are allowed to circumvent to access a work you have rights to. So these takedowns on GitHub should not be happening.
  - schoen 5y ago
    There's no exception to the tools prohibition based on purpose. One of many harsh features of §1201.
    - R0b0t1 5y ago
      Nope, the law contradicts itself. In such a conflict it is typical to favor the consumer.
      - wtallis 5y ago
        Can you point out the contradicting bits?
deleted 5y ago
[deleted]
thakoppno 5y ago
I believe “place-shifting” too if there’s no profit motive. At least that’s what I recall regarding the locast court decisions.
deleted 5y ago
[deleted]
diogenesjunior 5y ago
>code is speech, and speech is protected in the US is it really? i've never thought of it like that.

lnxg33k1 5y ago

As Italian, I think you should take my words with mistrust, but as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen That said, I guess it was shortsighted from the founding father but I guess at the time people would be often oppressed by governments not by neighbors and friends and I think this is something we need to solve as it's the challenge of our times

michaelmrose 5y ago
> as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen Free speech by anyone to anyone is protected from government restriction. It is the government that is forbidden from punishing speech not the government that must be party to the speech else free speech would have nearly zero meaning. > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. What is oft said is that the first amendment doesn't protect you from non governmental consequences for your speech. For example you can be fired for your speech but you may not be imprisoned nor silenced by the government. When a private entity avails itself of remedies provided by the government to limit or punish your speech your constitutional rights are infringed because it is the government acting to limit your speech even if its on behalf of a claimant.
schoen 5y ago
What you describe isn't exactly the law in the U.S., but it gets at some real things: (1) there is a separate "right of petition" in the first amendment in parallel with the rights of freedom of speech and press; the right of petition relates to asking the government to change its behavior; (2) the courts have a notion of "core political speech", which is some of the most strongly protected speech; and (3) the courts have a different notion of "commercial speech", which is some of the least-protected speech.
ashtonkem 5y ago
> as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen This is mostly true. But there are some special exemptions. The real gotcha is that the courts have generally taken a dim view towards using the courts themselves to restrict someone’s speech. The Supreme Court basically doesn’t want (or maybe didn’t want given their recent changes) congress to launder free speech violations to civil lawsuits enforced by the courts. That’s kind of a neat trick that you’d generally want to suppress, which if I understand is why there are first amendment issues around defamation lawsuits, despite being purely between individuals. How does this work with the DMCA? I dunno. But to my (non lawyer) eyes it does seem kinda like it effectively criminalizes speech, and I wonder if it should stand up to judicial scrutiny.
User23 5y ago
> I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen It depends. For example the 1st amendment protects a great deal of speech that in other countries would be slander, even though in that case the plaintiff is another civil entity and not the government.

not2b 5y ago

Unfortunately the DMCA also covers technology that works around DRM, not just copyright violation. Anyone wanting to share any anti-DRM software is advised to use a non-US site; GitHub probably doesn't have a choice about things like this once someone reports it. The notice didn't claim copyright violation. It claimed (accurately) that this code worked around their DRM.

ryukafalz 5y ago
Except it started with: > Yes, I am the copyright holder.
- not2b 5y ago
  Read the rest. In context they are saying that the code allows people to circumvent the DRM and access their copyrighted works. So it's an anti-DRM claim not an ordinary copyright claim.
  - im3w1l 5y ago
    I think there are two separate issues here. Is the code illegal? Yes* Is the takedown notice correct and truthful? No* *Ianal etc.
kmeisthax 5y ago
By "non-US" you probably mean "non-WTO". WIPO/TRIPS was specifically used to policy-launder DMCA 1201 into US law despite the objections of the tech community in the US. EU law has very similar provisions and I'm told "copypaste 1201 language into your local law" is a common ask during USTR negotiations.
- not2b 5y ago
  I'm not competent to advise people on which countries are "safe" for this purpose, perhaps others know.
  - 5y ago

kmeisthax 5y ago

So, the thing about circumvention exceptions is that... 1. There is no general exception for format shifting. If there was, DMCA 1201 would have zero legal weight. 2. Even if there was, it would not materially impact the legal status of this DMCA 512 takedown request This is because DMCA 1201 circumvention exceptions only apply to half of the law. Section 1201 renders two different acts illegal: 1. You can't circumvent DRM, unless for specific purposes. 2. You can't tell anyone how to circumvent DRM, regardless of purpose. This is the sort of violation being alleged here. Depending on how you look at it, either Congress assumed a black market would exist for DRM circumvention technology anyway; or they assumed people who need lawful circumvention would in-house everything and destroy it when they no longer needed it. That's the sort of question a court might have to interpret if someone was a bit more careful than, say, publishing the DRM unlock straight onto GitHub. But that's not this case. In this case, the law does not facilitate any fair use argumentation whatsoever. It's not a lie, the DMCA 1201 exception process is just hilariously toothless.

R0b0t1 5y ago
You're not allowed to circumvent for format shifting, but you are allowed to circumvent to access a work you have rights to. So these takedowns on GitHub should not be happening.
- schoen 5y ago
  There's no exception to the tools prohibition based on purpose. One of many harsh features of §1201.
  - R0b0t1 5y ago
    Nope, the law contradicts itself. In such a conflict it is typical to favor the consumer.
    - wtallis 5y ago
      Can you point out the contradicting bits?

deleted 5y ago

[deleted]

thakoppno 5y ago

I believe “place-shifting” too if there’s no profit motive. At least that’s what I recall regarding the locast court decisions.

deleted 5y ago

[deleted]

diogenesjunior 5y ago

>code is speech, and speech is protected in the US is it really? i've never thought of it like that.