11 ms·

A Better DMCA Process

115 points by geetarista 12y ago

brentjanderson 12y ago
Interesting that this follows on the heels of the Popcorn Time DMCA takedown: https://github.com/github/dmca/blob/master/2014-07-11-MPAA.md https://github.com/github/dmca/blob/master/2014-07-11-MPAA.m... EDIT: Also here: https://news.ycombinator.com/item?id=8450145 https://news.ycombinator.com/item?id=8450145
- opendais 12y ago
  No, it isn't. That is from months ago that someone reposted recently.
- ad_hominem 12y ago
  If it was actually prompted by something, it would probably be the recent Inspeqtor[1] takedown[2][3][4] by Monit. [1]: https://github.com/mperham/inspeqtor https://github.com/mperham/inspeqtor [2]: https://twitter.com/mperham/status/518796150733033472 https://twitter.com/mperham/status/518796150733033472 [3]: https://twitter.com/mperham/status/519164948887257090 https://twitter.com/mperham/status/519164948887257090 [4]: https://twitter.com/mperham/status/519326759930454016 https://twitter.com/mperham/status/519326759930454016
- junto 12y ago
  Just a note concerning this. Popcorn allows users to easily find and watch torrents, which could be illegal copies. Why does the software that enables that fall under a DMCA request? Shouldn't any web browser or search engine also fall under the same rules because they allow me to browse and watch mp4 movies?
whafro 12y ago
This is interesting because the DMCA process is, as I understood it (as a paralegal working on DMCA issues in a past life), a fairly rigid prescription that provides a safe harbor for providers like GitHub, ISPs, YouTube, etc. The simplified version of the process: 1. The party claiming to own the rights to copied content submits a well-formed DMCA takedown notice to the listed DMCA agent contact information of the provider. 2. The provider blocks access to the content as soon as possible, and informs their customer/user about the takedown notice. 3. The user may then submit a counter-notice to the provider claiming that they do indeed have the rights. 4. The provider then re-enables access to the content and notifies the claiming party of the counter-notice. 5. If the claiming party disagrees, they file suit in court, notify the provider, and the provider generally again disables access. As long as the provider takes these steps without delay, it is safe from any claims that it is itself in violation of the DMCA. So here, GitHub is actually stating that they're delaying proceeding from step 1 to step 2. It's certainly customer-friendly, but I wonder if it causes any issues with the safe harbor.
- dangrossman 12y ago
  Here's the actual relevant text from the bill [1]: > upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity Immediately contacting the repository owner, and asking them to remove the content themselves within a short window of time, sounds like an expeditious response to my non-lawyer ears. One nitpick as well: > it is safe from any claims that it is itself in violation of the DMCA § 512 of the DMCA provides for immunity from liability for breaking another law, the copyright act. It's not "violating the DMCA", and service providers do not have to take advantage of § 512 safe harbor provisions if they don't want the benefits of doing so. Without this safe harbor, the service provider could be guilty of infringing the copyright of whomevers' property they're distributing copies of on behalf of their user. If they _voluntarily_ opt to meet the § 512 requirements by expeditiously taking down content, then they can't be held liable for that illegal act, even though it did happen. 1: http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512
  - whafro 12y ago
    I think it generally sounds like a good thing too. I'm just wondering if rights-holders and courts will end up agreeing. Thanks for the latter clarification.
  - DannyBee 12y ago
    "Immediately contacting the repository owner, and asking them to remove the content themselves within a short window of time, sounds like an expeditious response to my non-lawyer ears. Except, uh, you cut out the object of this sentence, which is the service provider, not the user. That is, github, not the user, is supposed to be the person responding expeditiously to remove. Contacting someone is neither "removing" nor "disabling access". The law is simply not ambiguous here, and github trying to play this game is not likely to go well in an actual court, as much as i'd like it to be the case (i know other companies have been threatened on exactly this point before).
    - 12y ago
kodablah 12y ago
"Accordingly, from now on we will require copyright owners to investigate and report each fork explicitly in a DMCA takedown notice." I don't see how there are no legal fears or at least administrative ones here. If one submits a legitimate DMCA takedown and your site allows copies, it might be unreasonable (to a judge) that they must name all copies considering forks can happen between when the DMCA was submitted and the takedown occurs. Of course I don't know of a better way without GitHub annoying forked repository owners and favoring DMCA submitters.
- dangrossman 12y ago
  Thanks to 17 USC § 512 (c), service providers are not liable for hosting copies of copyright infringing material so long as they don't have actual knowledge of that infringement. Since a fork can differ from its parent, notice that the parent may be infringing is not actual knowledge that the forks are as well. That means Github has, in theory, no legal liability for those copies. It can just point to federal law. http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512
  - DannyBee 12y ago
    "is not actual knowledge that the forks are as well" You assert this as if this is how a judge would see it (or as if it is well tested). That seems highly unlikely to me. It seems to be very easy to make the legal argument that because github knows which forks are copies and which aren't, they have actual knowledge of the ones that are still copies.
    - wtallis 12y ago
      In order for GitHub to be presumed to know that the forks are also infringing, the takedown notice would have to specify what in the repo is infringing so that GitHub could compare the contents of the forks against the instance that the takedown notice is filed against. If the notice doesn't specify any particular files in the repo, then GitHub can't be expected to remove any fork that has any deletions in its history since the branch. The ease with which the accuser can check the forks for infringement also shifts the burden away from GitHub.
zackmorris 12y ago
I can't help but think of the Snapchat breach. Surely the world understands that once something is on the internet, it's there forever, right? Complying with the DMCA is security theater at best, and at worst, stifling to innovation. I mean, we have many laws centered around the difference between intentionally and unintentionally inflicting harm on others. So for example if you break someone’s rib performing CPR, you’re protected as a good samaritan. Or if you veer off the road and run someone over because you were texting, you can still be tried for manslaughter because you shouldn’t have been typing on your cell phone in the first place. I think we can all agree that it’s good we have these types of laws and don’t just focus on premeditated crime. But the DMCA tries to be a moral compass when it’s not mathematically possible to do so. It’s a bit like setting up a booth on the Grand Canyon that charges money to take pictures. Sure, they can bust bootleggers that set up black market booths without a license. They can even bust scalpers selling photos. But in the end, the Grand Canyon is still there. Whether someone gets irate about piracy/copying trade secrets or not, in the end, perhaps as a society we should ask if it makes any sense to spend tax dollars trying to stop something that can’t be stopped once the cat’s out of the bag. Actually, I think GitHub is in a unique position to not comply with the DMCA. It has nothing to do with the size of GitHub, because no matter how large a private entity is, it is always subject to the laws of its government. It has more to do with the fact that every developer in the world has either heard of GitHub or uses it every day. In other words, we are the people that form what can be thought of as the technology arm of society, so by extension the technology arm of government. That gives us a seat at the table in matters of technology, the same way that teachers unions are able to influence education or the American Medical Association can influence public health. If we decide that the DMCA is not a good use of taxpayer money and should no longer be enforced (in fact can’t be enforced), then it’s not up to a court to decide that, since they will side with the law every time (as they should). The law itself is what must be adjusted or repealed, by the people who have the means to do so by virtue of the role they play in society. We have the leverage to repeal it because without our support, there is no expertise to enforce it in the first place. If GitHub complies with the DMCA and we use GitHub, then we are quietly endorsing the DMCA.
- dangrossman 12y ago
  > If GitHub complies with the DMCA and we use GitHub, then we are quietly endorsing the DMCA. I happily endorse § 512 of the DMCA. Not only is the safe harbor provision a well-balanced law for all parties involved, but it's the only thing that makes startups that host UCG legally viable. Without the DMCA, Github could not exist. They'd be personally liable for every copy of every file they distribute without a copyright holder's permission. This particular piece of the DMCA doesn't have to eliminate all piracy online to be effective. Take the case of a feature film release -- a $XXXMM investment by the copyright holders into their product -- that could be seriously harmed to the tune of tens of millions of dollars by someone leaking a copy online a few days before ticket sales begin. The DMCA notices can disable the most visible (and most damaging) copies, expeditiously enough to save the film's box office sales. Mitigating much of the harm is better than nothing. > perhaps as a society we should ask if it makes any sense to spend tax dollars This part I don't get. The alternative to the above is an emergency court hearing for every instance of infringement, hoping to attain an emergency injunction, then get it to an ISP before too much damage is done. The safe harbor provision doesn't (directly) cost tax payers anything. It saves us billions. Every day, hundreds or thousands of instances of copyright infringement are handled by an e-mail instead of a taxpayer-funded court hearing. It sounds to me like you're making an argument against copyright, not the DMCA. DMCA § 512 (the notice/counternotice safe harbor system) is about mitigating the legal liability created by the copyright act on service providers. In its entirety, the DMCA was the US's implementation of the WIPO Copyright and Performances and Phonograms Treaties. It is not what created copyright protection itself.

115 points by geetarista 12y ago

Interesting that this follows on the heels of the Popcorn Time DMCA takedown: https://github.com/github/dmca/blob/master/2014-07-11-MPAA.md https://github.com/github/dmca/blob/master/2014-07-11-MPAA.m... EDIT: Also here: https://news.ycombinator.com/item?id=8450145 https://news.ycombinator.com/item?id=8450145

opendais 12y ago
No, it isn't. That is from months ago that someone reposted recently.
ad_hominem 12y ago
If it was actually prompted by something, it would probably be the recent Inspeqtor[1] takedown[2][3][4] by Monit. [1]: https://github.com/mperham/inspeqtor https://github.com/mperham/inspeqtor [2]: https://twitter.com/mperham/status/518796150733033472 https://twitter.com/mperham/status/518796150733033472 [3]: https://twitter.com/mperham/status/519164948887257090 https://twitter.com/mperham/status/519164948887257090 [4]: https://twitter.com/mperham/status/519326759930454016 https://twitter.com/mperham/status/519326759930454016
junto 12y ago
Just a note concerning this. Popcorn allows users to easily find and watch torrents, which could be illegal copies. Why does the software that enables that fall under a DMCA request? Shouldn't any web browser or search engine also fall under the same rules because they allow me to browse and watch mp4 movies?

whafro 12y ago

This is interesting because the DMCA process is, as I understood it (as a paralegal working on DMCA issues in a past life), a fairly rigid prescription that provides a safe harbor for providers like GitHub, ISPs, YouTube, etc. The simplified version of the process: 1. The party claiming to own the rights to copied content submits a well-formed DMCA takedown notice to the listed DMCA agent contact information of the provider. 2. The provider blocks access to the content as soon as possible, and informs their customer/user about the takedown notice. 3. The user may then submit a counter-notice to the provider claiming that they do indeed have the rights. 4. The provider then re-enables access to the content and notifies the claiming party of the counter-notice. 5. If the claiming party disagrees, they file suit in court, notify the provider, and the provider generally again disables access. As long as the provider takes these steps without delay, it is safe from any claims that it is itself in violation of the DMCA. So here, GitHub is actually stating that they're delaying proceeding from step 1 to step 2. It's certainly customer-friendly, but I wonder if it causes any issues with the safe harbor.

dangrossman 12y ago
Here's the actual relevant text from the bill [1]: > upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity Immediately contacting the repository owner, and asking them to remove the content themselves within a short window of time, sounds like an expeditious response to my non-lawyer ears. One nitpick as well: > it is safe from any claims that it is itself in violation of the DMCA § 512 of the DMCA provides for immunity from liability for breaking another law, the copyright act. It's not "violating the DMCA", and service providers do not have to take advantage of § 512 safe harbor provisions if they don't want the benefits of doing so. Without this safe harbor, the service provider could be guilty of infringing the copyright of whomevers' property they're distributing copies of on behalf of their user. If they _voluntarily_ opt to meet the § 512 requirements by expeditiously taking down content, then they can't be held liable for that illegal act, even though it did happen. 1: http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512
- whafro 12y ago
  I think it generally sounds like a good thing too. I'm just wondering if rights-holders and courts will end up agreeing. Thanks for the latter clarification.
- DannyBee 12y ago
  "Immediately contacting the repository owner, and asking them to remove the content themselves within a short window of time, sounds like an expeditious response to my non-lawyer ears. Except, uh, you cut out the object of this sentence, which is the service provider, not the user. That is, github, not the user, is supposed to be the person responding expeditiously to remove. Contacting someone is neither "removing" nor "disabling access". The law is simply not ambiguous here, and github trying to play this game is not likely to go well in an actual court, as much as i'd like it to be the case (i know other companies have been threatened on exactly this point before).
  - 12y ago

kodablah 12y ago

"Accordingly, from now on we will require copyright owners to investigate and report each fork explicitly in a DMCA takedown notice." I don't see how there are no legal fears or at least administrative ones here. If one submits a legitimate DMCA takedown and your site allows copies, it might be unreasonable (to a judge) that they must name all copies considering forks can happen between when the DMCA was submitted and the takedown occurs. Of course I don't know of a better way without GitHub annoying forked repository owners and favoring DMCA submitters.

dangrossman 12y ago
Thanks to 17 USC § 512 (c), service providers are not liable for hosting copies of copyright infringing material so long as they don't have actual knowledge of that infringement. Since a fork can differ from its parent, notice that the parent may be infringing is not actual knowledge that the forks are as well. That means Github has, in theory, no legal liability for those copies. It can just point to federal law. http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512
- DannyBee 12y ago
  "is not actual knowledge that the forks are as well" You assert this as if this is how a judge would see it (or as if it is well tested). That seems highly unlikely to me. It seems to be very easy to make the legal argument that because github knows which forks are copies and which aren't, they have actual knowledge of the ones that are still copies.
  - wtallis 12y ago
    In order for GitHub to be presumed to know that the forks are also infringing, the takedown notice would have to specify what in the repo is infringing so that GitHub could compare the contents of the forks against the instance that the takedown notice is filed against. If the notice doesn't specify any particular files in the repo, then GitHub can't be expected to remove any fork that has any deletions in its history since the branch. The ease with which the accuser can check the forks for infringement also shifts the burden away from GitHub.

zackmorris 12y ago

I can't help but think of the Snapchat breach. Surely the world understands that once something is on the internet, it's there forever, right? Complying with the DMCA is security theater at best, and at worst, stifling to innovation. I mean, we have many laws centered around the difference between intentionally and unintentionally inflicting harm on others. So for example if you break someone’s rib performing CPR, you’re protected as a good samaritan. Or if you veer off the road and run someone over because you were texting, you can still be tried for manslaughter because you shouldn’t have been typing on your cell phone in the first place. I think we can all agree that it’s good we have these types of laws and don’t just focus on premeditated crime. But the DMCA tries to be a moral compass when it’s not mathematically possible to do so. It’s a bit like setting up a booth on the Grand Canyon that charges money to take pictures. Sure, they can bust bootleggers that set up black market booths without a license. They can even bust scalpers selling photos. But in the end, the Grand Canyon is still there. Whether someone gets irate about piracy/copying trade secrets or not, in the end, perhaps as a society we should ask if it makes any sense to spend tax dollars trying to stop something that can’t be stopped once the cat’s out of the bag. Actually, I think GitHub is in a unique position to not comply with the DMCA. It has nothing to do with the size of GitHub, because no matter how large a private entity is, it is always subject to the laws of its government. It has more to do with the fact that every developer in the world has either heard of GitHub or uses it every day. In other words, we are the people that form what can be thought of as the technology arm of society, so by extension the technology arm of government. That gives us a seat at the table in matters of technology, the same way that teachers unions are able to influence education or the American Medical Association can influence public health. If we decide that the DMCA is not a good use of taxpayer money and should no longer be enforced (in fact can’t be enforced), then it’s not up to a court to decide that, since they will side with the law every time (as they should). The law itself is what must be adjusted or repealed, by the people who have the means to do so by virtue of the role they play in society. We have the leverage to repeal it because without our support, there is no expertise to enforce it in the first place. If GitHub complies with the DMCA and we use GitHub, then we are quietly endorsing the DMCA.

dangrossman 12y ago
> If GitHub complies with the DMCA and we use GitHub, then we are quietly endorsing the DMCA. I happily endorse § 512 of the DMCA. Not only is the safe harbor provision a well-balanced law for all parties involved, but it's the only thing that makes startups that host UCG legally viable. Without the DMCA, Github could not exist. They'd be personally liable for every copy of every file they distribute without a copyright holder's permission. This particular piece of the DMCA doesn't have to eliminate all piracy online to be effective. Take the case of a feature film release -- a $XXXMM investment by the copyright holders into their product -- that could be seriously harmed to the tune of tens of millions of dollars by someone leaking a copy online a few days before ticket sales begin. The DMCA notices can disable the most visible (and most damaging) copies, expeditiously enough to save the film's box office sales. Mitigating much of the harm is better than nothing. > perhaps as a society we should ask if it makes any sense to spend tax dollars This part I don't get. The alternative to the above is an emergency court hearing for every instance of infringement, hoping to attain an emergency injunction, then get it to an ISP before too much damage is done. The safe harbor provision doesn't (directly) cost tax payers anything. It saves us billions. Every day, hundreds or thousands of instances of copyright infringement are handled by an e-mail instead of a taxpayer-funded court hearing. It sounds to me like you're making an argument against copyright, not the DMCA. DMCA § 512 (the notice/counternotice safe harbor system) is about mitigating the legal liability created by the copyright act on service providers. In its entirety, the DMCA was the US's implementation of the WIPO Copyright and Performances and Phonograms Treaties. It is not what created copyright protection itself.