A Better DMCA Process

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 The law itself is what must be adjusted or repealed, by the people who have the means to do so by virtue of the role they play in society.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.

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.

It sounded like you were claiming otherwise, saying that asking the user is acting expeditiously "enough", and that they can then "not remove" or slow down removal.

If you aren't claiming that, then we have no argument :)