The headline on the article should reflect the fact that Microsoft/Github pulled youtube-dl offline by choosing to respond to a DMCA takedown order that is not procedurally valid. The privatization of law enforcement through DMCA takedown orders does not extend to alleged circumvention tools; it includes only copyrighted material that is allegedly 'pirated.'
The RIAA is engaging in an abuse of process that Microsoft has no obligation to cooperate with. The fact that Microsoft didn't tell the RIAA to go Disney themselves means that 100% of the blame lies at Microsoft's feet. No exceptions.
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That said, the youtube-dl maintainers should file a bar association complaint against the RIAA lawyer(s) who wrote the DMCA takedown. Filing invalid motions is an ethical violation that should result in sanctions.
I don't follow the argument that the procedural invalidity makes Github more culpable.
In a normal, procedurally valid, DMCA the only harm to the host for not following the procedure is that they lose the safe harbor.
In this case because it isn't a question of infringement there isn't a safe harbor at all.
In either case a company can choose to take something down because it wants to reduce its exposure to litigation.
I'm disappointed that even after acquisition github has continued with the beyond-industry-standard level of aggressiveness with takedowns. But I don't see how you conclude that the anti-circumvention complaint makes github more in the wrong for complying.
Based on your response, and the parent comment, it seems like content hosts have a responsibility: to determine if a DMCA takedown request is valid. If a host doesn't see this as a responsibility, and simply complies with every DMCA (whether valid, invalid, or even fraudulent), I'd agree with op... the host is culpable whenever they comply with an invalid or fraudulent DMCA request. Maybe not culpable in a legal sense, but certainly they are to blame (otherwise who?) for complying with invalid DMCA.
They don't have a responsibility except in a goodwill sense.
The DMCA gives hosts an option to have legal immunity for each specific case of infringement, to gain the immunity they need only take the content down at the cost of outraging a potential customer. They don't have to take the option, however.
It is common in industry for hosts to simply discard obviously invalid complaints particularly if the target is high profile. The legal immunity isn't very valuable if the complaint is baseless-- (sure, there might be frivolous litigation, but that is always possible).
It also seems pretty common for hosts to allow the target of the complaint to counter-notice in advance of taking the material down and then just skip the takedown, or they take it down but restore it immediately on counter-notice (youtube itself does this, or at least did when I was hit with a spurious dmca complaint there years ago). Both of these procedures don't follow the letter of the law and arguably cost the provider their safe-harbour. OTOH, almost no DMCA complaints are actually valid per the specific requirements of the statute, so maybe they don't actually lose their safe-harbour.
I once worked for a business that got a DMCA request for taking down a legitimate site, from a law firm acting on the site owner's behalf. They refused to listen to reason and didn't stop until we got the site owner to call their own lawyers and tell them back off. Luckily, we were outside the jurisdiction of the DMCA so we had the option of simply saying no.
I can't imagine it was the only time such a thing happened, and that alone is an argument for simply ignoring those take-down requests if possible.
I mean, to be fair, they probably have one of the most colossal legal teams of any tech company, no?
Regardless, I think they takedown without giving the "DMCA" complaint much scrutiny because the risk of penalty for NOT taking action is greater than just taking down the repo(s) risk-free.
Github's ToS: which says "we have the right (though not the obligation) to refuse or remove any User-Generated Content that, in our sole discretion, violates any GitHub terms or policies." ( https://docs.github.com/en/free-pro-team@latest/github/site-... )
I have to say it IS strange they took down content based on a letter that doesn't prove or even really suggest copyright infringement has taken place (only that it COULD, as a result of using the software), and their own ToS says "There may be legal consequences for sending a false or frivolous takedown notice." ( https://docs.github.com/en/free-pro-team@latest/github/site-... )
> It's not Github/Microsoft's responsibility to make legal determinations about whether a particular DMCA takedown notice is valid.
Except, by choosing to honor it, they decided that it is legally valid.
The appropriate response to a copyright claim against material that the claimant clearly does not own is 'unless you can prove that you own this material, come back with a court order.'
Is it? OR is it the prudent thing to do to temporarily make it unavailable. Then take a second to look at things, then bring it back again if that the action deemed appropriate? If doing nothing leaves the vulnerable while doing something that gets reversed gives them ammo to go after the accuser, then it seems the lesser of 2 evils to me
Under section 1201 anti-circumvention rules, unless Youtube-DL enters the US legal system & counter-notifies, Github/Microsoft face CRIMINAL liability charges with steep JAIL TIME and a half-million dollar fine.
I want to chew Microsoft out for this one, but the US-based copyright mafia have built themselves an unbelievably vicious draconian set of laws that prevent any sort of challenge, including those coming from scientific inquiry or examination. Anti-circumvention is the most world-hating corporate-owned-world flaming garbage that could be devised, and violating it comes with unbelievably mercilessly cruel criminal penalties.
The menace of this threat has silenced science & speech, has prevented mankind from examining the world about them, learning of it, & discussing it. We have outlawed knowledge, outlawed idea, literally criminalized knowing something about the world with steep jail time. This is a farce, of the highest order, one of the greatest shames the law has done unto itself.
I feel like this line from your link to Bunnie Huang's blog is apropos to many of the conflicts of our time:
> Like the parable of the frog in the well, their creativity has been confined to a small patch, not realizing how big and blue the sky could be if they could step outside that well.
That was posted in 2016; does anyone know what happened with that lawsuit?
> that Microsoft/Github pulled youtube-dl offline by choosing to respond to a DMCA takedown order that is not procedurally valid.... The fact that Microsoft didn't tell the RIAA to go Disney themselves means that 100% of the blame lies at Microsoft's feet. No exceptions.
What you said is clearly correct, but I don't think it's reasonable to expect any company to insert themselves in the middle of these disputes. At scale it's impossible.
Imagine you run a forum with millions of members and tens of thousands of posts per day. You get a stack of DMCA takedown requests every day. Do you think it's feasible for you to scrutinize each and every one, and take a moral stand on those you deem 'not procedurally valid' ? How much do you think that might cost? What happens when you call one wrong and the law comes to YOU?
For anything to really change, it's clear someone will have to go after the RIAA.. (EFF maybe?)
Given the number of fraudulent DMCA takedowns that are created by bots and malicious actors, they absolutely have to be individually examined by competent legal counsel.
At one point Microsoft was issuing DMCA takedowns against (then) openOffice.org mirrors, allegedly on the grounds that any large file with a name that contained the word 'office' must be a 'pirated' version of MS Office. Taking these takedowns at face value would have ended the openOffice.org project and absolutely could not have been respected in good faith.
These kind of abuses are ongoing from multiple parties, including bots, copyright trolls, and crazed ideologues who file completely fraudulent DMCA takedowns to force anonymous personalities to disclose their identities. There is no alternative but to consider DMCA takedowns on legal merits because so many of them have no merits whatsoever.
Having the funding to do this 'at scale' is just as much a cost of doing business as paying for power and connectivity. If hosting platforms don't want to do this, then they should purchase an amendment to the DMCA to impose criminal sanctions on entities that serve fraudulent DMCA takedowns.
