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InfoQ Homepage News GitHub Funds Independent Legal Support for Developers against DMCA

GitHub Funds Independent Legal Support for Developers against DMCA

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GitHub has launched a program to offer developers free legal support from Stanford Law School against DMCA takedowns requested under Section 1201.

According to GitHub's head of developer policy Mike Linksvayer, DMCA complexity is such that especially open source developers may tend to just remove allegedly infringing code without even trying to defend their rights. To change this, GitHub created the GitHub Developer Rights Fellowship at the Stanford Law School Juelsgaard Intellectual Property and Innovation Clinic.

Funded with one million dollars, this initiative will allow GitHub to give developers the option to defend their right when receiving a takedown notification at no cost.

At the moment, the GitHub Developers Rights Fellowship will only cover Section 1201 of the Digital Millennium Copyright Act, which focuses on the circumvention of technological protection measures like digital rights management (DRM), but Linksvayer says GitHub might consider to offer referrals for other situations as they learn from experience and where possible.

InfoQ has taken the chance to speak with Mike Linksvayer, head of developer policy at GitHub, and Phil Malone, director of Juelsgaard Clinic, Stanford Law.

InfoQ: Could you provide some figures regarding how many takedown notices GitHub receives, and how many of them end up in eventually re-enabling the allegedly infringing content?

Mike Linksvayer: GitHub does not report on the number of takedown notices it receives, however last year we received and processed over 2000 valid DMCA takedown notices, as detailed in our transparency report.

InfoQ: What kind of content gets flagged by the copyright owner as infringing on their copyright? And what kind of infringement claims are the most common?

Linksvayer: In the interest of transparency, we share every DMCA takedown notice we process.

The DMCA takedowns that GitHub processes tend to be about non-code content. Takedown notices about open source license non-compliance are relatively rare as that’s the sort of thing that can typically be worked out amicably. Again, full details can be found in our transparency report.

InfoQ: Could you provide some recent examples where, had the Developer Defense Fund already been in place, it would have helped developers to defend their rights?

Linksvayer: In general, most claims based on circumvention are complicated and often involve novel legal issues. That is why GitHub has decided to create the Developer Defense Fund to more broadly help with this category of cases. Some examples can include cases involving security research, or reverse engineering by fans who wanted to play an old favorite game, or cases involving hobbyists who create unofficial interfaces to tinker with hardware.

InfoQ: What is your general appreciation of the way DMCA takedowns have been working for software artifacts?

Phil Malone: I agree with what Mike says above that relatively few DMCA takedowns for code are related to open source license noncompliance. But as with the DMCA generally, takedowns focused on Section 1201 vary a lot in quality. Some are legitimate and target code that actually violates, or enables others to violate, the anti-circumvention restrictions of Section 1201. Others may be completely unfounded and abusive, intended to take down code projects for illegitimate reasons. And many others are somewhere in between — not necessarily sent in bad faith or abusive, but nevertheless legally questionable or misplaced.

Unfortunately, software developers who are on the receiving end of DMCA notices often don’t have the specialized knowledge or resources to properly analyze the notices and decide whether or not they are valid, and to decide how to respond. The Fellowship is intended to give developers more information, resources, and assistance so they can respond appropriately under the circumstances.

InfoQ: What are the practices that make it work at best or at its worst (e.g., automated takedowns)?

Malone: Automated takedowns are extremely common in the context of DMCA Section 512 takedowns but less so with Section 1201 takedowns. But in either situation they can cause serious problems with how the DMCA’s notice and takedown process works.

Automated takedowns are typically very bad at assessing the context in which particular code or content is used. As a result, they often ignore legitimate justifications a developer or creator may have under the law for their code or content, such as copyright exceptions like fair use or carve-outs to Section 1201. Without human judgment in the loop to examine the circumstances of a particular case, DMCA notices are often sent that are not legally justified because they don’t take the context into account.

InfoQ: What would you change of DMCA to make it more effective and just, less prone to misuse?

Malone: Improper DMCA takedown notices are a real and significant problem. For example, many takedown notices are directed at code or content that is not actually infringing, or for which the person who sends the notice is not legally entitled to enforce. In the worst cases, some people misuse the takedown process to damage code development projects or hurt competitors, or to remove speech or other content that they don’t like.

One of the most important things currently missing in the DMCA is a meaningful, enforceable mechanism to stop people from this misuse, to deter them from sending takedown notices that they know or should know are not legally justified.

Right now, Section 512(f) of the DMCA allows the recipient of an illegitimate takedown notice to seek damages and attorneys fees from someone who sends a notice that “knowingly materially misrepresents” that particular code or content infringes copyright. But because courts have interpreted Section 512(f) narrowly, it is very difficult in practice to hold senders of improper notices accountable or to obtain a meaningful remedy even if they do. As a result, many people and businesses continue to send improper takedown notices with little worry that they will suffer consequences for their misuse of the DMCA.

Section 512(f) should be strengthened to provide realistic and meaningful penalties and create a real deterrent for anyone misusing the DMCA notice and takedown process.

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