A Better DMCA Process

#1

Post by geetarista » Thu, Oct 16, 2014, 4:07 PM UTC

Re: A Better DMCA Process

#2

Post by brentjanderson » Thu, Oct 16, 2014, 4:22 PM UTC

Interesting that this follows on the heels of the Popcorn Time DMCA takedown: https://github.com/github/dmca/blob/master/2014-07-11-MPAA.m...

EDIT: Also here: https://news.ycombinator.com/item?id=8450145

Re: A Better DMCA Process

#3

Post by whafro » Thu, Oct 16, 2014, 4:24 PM UTC

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.

Re: A Better DMCA Process

#4

Post by opendais » Thu, Oct 16, 2014, 4:25 PM UTC

brentjanderson wrote: post #2

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

No, it isn't. That is from months ago that someone reposted recently.

Re: A Better DMCA Process

#5

Post by dangrossman » Thu, Oct 16, 2014, 4:29 PM UTC

whafro wrote: post #3

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 p…

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

Re: A Better DMCA Process

#6

Post by kodablah » Thu, Oct 16, 2014, 4:32 PM UTC

"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.

Re: A Better DMCA Process

#7

Post by UnoriginalGuy » Thu, Oct 16, 2014, 4:33 PM UTC

whafro wrote: post #3

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 p…

Was that what they said? Typically you have 24 hours to disable from a DMCA notice. All they said is they would give the user a chance to fix it before the takedown they didn't say how long that chance may be. Could be 23 hours.

Re: A Better DMCA Process

#8

Post by dangrossman » Thu, Oct 16, 2014, 4:38 PM UTC

kodablah wrote: post #6

"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 an…

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

Re: A Better DMCA Process

#9

Post by whafro » Thu, Oct 16, 2014, 4:39 PM UTC

dangrossman wrote: post #5

whafro wrote: post #3

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 p…

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 expe…

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.

Re: A Better DMCA Process

#10

Post by ad_hominem » Thu, Oct 16, 2014, 4:46 PM UTC

brentjanderson wrote: post #2

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

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

[2]: https://twitter.com/mperham/status/518796150733033472

[3]: https://twitter.com/mperham/status/519164948887257090

[4]: https://twitter.com/mperham/status/519326759930454016