GitHub jeopardizes its DMCA safe harbor status by launching its new policy

GitHub has baked in some feelgood to its new DMCA takedown policy. The new setup features clearer language, a refusal to automatically disable all forks of an allegedly infringing repository, and a 24-hour window in which the target of a takedown notice may make changes. The mechanisms of this third point ought to cause one to consider whether GitHub is risking the protections of the DMCA safe harbor.

If a DMCA takedown notice alleges that only certain files (as opposed to the whole repository) infringe, under the new policy, GitHub “will contact the user who created the repository and give them approximately 24 hours to delete or modify the content specified in the notice.” If the user makes changes to the repository, the burden shifts back to the sender of the DMCA notice. This shifing-the-burden-back seems problematic under the DMCA.

GitHub’s policy says:

If the user makes changes, the copyright owner must review them and renew or revise their takedown notice if the changes are insufficient. GitHub will not take any further action unless the copyright owner contacts us to either renew the original takedown notice or submit a revised one. If the copyright owner is satisfied with the changes, they may either submit a formal retraction or else do nothing. GitHub will interpret silence longer than two weeks as an implied retraction of the takedown notice.

The DMCA protects a party in GitHub’s position so long as the party “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement”. Read that provision carefully — the response must be to take down, not merely take steps to work with the alleged infringer to make it right. GitHub’s new mechanism of interpreting silence as a retraction is not an expeditious removal of or disabling access to allegedly infringing material. Nothing in the DMCA requires the sender of the takedown notice to have to ask twice.

You’ve got to hand it to GitHub for trying to make the world a better place through this new policy. The intended net effect is to reduce the number of instances in which entire repositories are taken down simply because of a few allegedly infringing files. But GitHub is putting something of great value, namely, its DMCA safe harbor protection, at risk.

Many copyright plaintiffs look for every possible angle to pin liability. You can almost be certain that a copyright owner will challenge GitHub’s safe harbor status on the ground that GitHub did not respond expeditiously. It seems odd GitHub would be willing to toss a perfectly good affirmative defense. One would think the better approach would be to go ahead and take the repository down after 24 hours, rather than leaving it up and risk a finding on “non-expeditiousness”.

Related:

Microsoft letter to GitHub over DRM-free music software is not the first copyright-ironic action against an intermediary

Evan Brown is an attorney in Chicago advising clients on matters dealing with copyright, technology, the internet and new media.

YouTube has been a billion dollar boon to big media

This NBC News piece reports that since 2007, YouTube’s ContentID program has enabled copyright holders to monetize content posted to the service and get paid a billion dollars in the process. (Also included in the report is the staggering statistic that ContentID scans 400 years of content every day — we live in content-producing world of crazy proportions!)

So we see that with this kind of cash rolling in, it’s no wonder that Viacom finally came to its senses earlier this year when it decided to discontinue its litigation against YouTube. The billion dollar notion is also interesting — that’s the very amount Viacom sought when it filed suit in March 2007.

Copyright, not privacy, motivated Reddit to take down photos of nude celebrities

This VentureBeat piece with Reddit CEO Yishan Wong brings up a number of interesting facts concerning Reddit in the wake of its receiving an additional $50 million funding round. One of those pieces of interesting information concerns Reddit’s decision to take down a subreddit devoted to the sharing of recently-leaked celebrity nude photos.

Says Wong:

If there’s any confusion: [Reddit] did not shut down /r/TheFappening due to content linking to nude celebrity photos. The subreddit was shut down because users were reposting content already taken down due to valid DMCA requests, and because spammers began posting links to the images hosted on their own pay-per-click sites, or sites intended to spread malware.

We can’t read too much from this comment, but it does implicate that the dignitary interests of the celebrities involved did not motivate Reddit to do the right thing. Instead, the risk of copyright liability (or, more precisely, the risk that DMCA safe harbor protection may be eliminated) was a stronger motivation.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

When is news reporting fair use under copyright law?

Blogger claims fair use supports his challenge to DMCA takedown of YouTube video. But “news reporting” aspect of fair use can be tricky.

An embattled California pastor sent a DMCA takedown notice to YouTube over a video clip that a blogger used “to report accurately the relationship” between two organizations. The blogger sent a counternotification and explained that he believes copyright fair use protects him against the takedown (and apparently against infringement as well).

The blogger invokes, among other things, the news reporting aspect of fair use, which one finds set forth in Section 107 of the Copyright Act. A recent fair use case, Swatch Group Management Services Ltd. v. Bloomberg, 742 F. 3d 17 (2d Cir. 2014) might shed some interesting light on how news reporting plays into the analysis. In that case, the court found that defendant was protected by fair use when it distributed an audio recording of a company’s earnings call. Unlike many fair use cases, in which the analysis under the first factor (purpose and character of the use) becomes a question of whether the subsequent use is “transformative,” the court observes the following:

In the context of news reporting and analogous activities … the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it.

A defendant may in some circumstances provide transformative material along with the faithful reproduction of an original work. But the absence of that transformative material will not disqualify a defendant from showing fair use:

[B]y disseminating not just a written transcript or article but an actual sound recording, [defendant] was able to convey with precision not only what [plaintiff’s] executives said, but also how they said it. This latter type of information may be just as valuable … as the former, since a speaker’s demeanor, tone, and cadence can often elucidate his or her true beliefs far beyond what a stale transcript or summary can show.

So we see that the news reporting aspect of fair use can be conceptually separated from transformative use.

There is a slippery slope risk here, and the court recognized that. It cited to the Supreme Court’s Harper & Row decision to observe that “[t]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report'”. In this case, however, the “independent informational value inherent in a faithful recording” carried the day. From this we see a rule or guide: use of a piece of content is more likely to be newsworthy if the piece of content itself, and not just the raw information within the content, is a news event.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

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