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This is a great write-up, but I'll quibble with one small part of it: > It’s important to understand, however, that GitHub’s hands are tied in many ways here.
by teraflop 5y ago
This is a great write-up, but I'll quibble with one small part of it:
> It’s important to understand, however, that GitHub’s hands are tied in many ways here. If they do not follow the notice and counter notice procedures exactly as outlined in the DMCA law, they risk losing their safe harbor status with the US Copyright Office. Were this to happen, it would be completely disastrous to GitHub as a business.
I believe this is a bit of an exaggeration, because there is no such thing as "safe harbor status with the US Copyright Office". (The author might be thinking of the fact that providers have to register a designated agent with the Copyright Office, for service of infringement reports, in order to benefit from the law.)
The DMCA safe harbor is a legal defense against copyright infringement, and it operates on a case-by-case basis. If GitHub fails to respond to a particular takedown request as it's required to, it loses the ability to assert the safe harbor defense for the allegedly infringing material identified in that request. It does not mean it somehow loses the DMCA protections for any other material that it hosts.
In practice, this means that GitHub employees can make mistakes, or the company can deliberately choose to stand up to superficially-valid DMCA takedowns that it thinks are frivolous, without necessarily posing an existential risk to the entire company.
- dwild 5y ago> the company can deliberately choose to stand up to superficially-valid DMCA takedowns that it thinks are frivolous, without necessarily posing an existential risk to the entire company. We all seen the Oracle vs Google lawsuit... sure they can choose to stand up to frivolous DMCA takedowns, but it doesn't means there won't be a frivolous lawsuit that follow. It just not worth it, why takes that risk when taking something down protect you from it?
- czx4f4bd 5y agoI think you mean Viacom v. Google. Oracle v. Google wasn't related to the DMCA. https://en.wikipedia.org/wiki/Viacom_International_Inc._v._YouTube,_Inc https://en.wikipedia.org/wiki/Viacom_International_Inc._v._Y.... https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_Inc https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....
- dwild 4y agoNo I meant Oracle vs Google. It's a copyright lawsuit, DMCA protect the middle man (Github here as they are the ones distributing the potentially copyrighted content) against being involved in copyright lawsuits.
- jrochkind1 5y ago> It just not worth it, why takes that risk when taking something down protect you from it? I mean, that's clearly the stance that most platforms are taking. The "why take that risk" would be -- to stand up for your user's rights or interests, against takedown requests that are frivolous or invalid. Github actually has occasionally taken that stance. @teraflop's point is that a company can choose to take that risk on a case-by-case basis -- say in cases you think are especially frivolous and thus also especially unlikely to be a legal liability -- and the risk borne is only with regard to that case, it does not imperil the ability to use the DMCA safe harbor defense in other cases. (Github seems to be unusual in having already decided to take that risk a couple times on a case by case basis, I think? They can be commended for it, and encouraged to do it more, or have transparent standards for when they will do it, or whatever). (Note that in the USA someone can file a frivolous lawsuit against you anytime. In this case, even if you respond to all takedown requests there's certainly no guarantee someone can't file a frivolous lawsuit against you anyway. It just shouldn't get very far, and will get thrown out quickly, if things work right, which certainly sometimes they don't, unjust things happen).