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Comment by dangrossman | Hacker News Reader

Why should Github take on unlimited liability for someone else's code? If a judge agrees that blocking this anti-circumvention technology is illegal (something the DMCA does prohibit), and Github had refused to take it down (which means they don't get safe harbor), then Github is the first-party that is liable for distributing that illegal technology, probably many millions of times. When you start taking statutory fines and multiply them by millions, you end up with numbers that would put Github out of business overnight. Is that beneficial to anyone?

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Because it does not accept unlimited liability by following DMCA takedown procedure. Following it places Github into the DMCA safe-harbor. Not following it opens Github to liability.

This is what should have happened:

  1. Github is served with a DMCA Takedown notice
  2. Github validates that the notice is valid
  3. Github takes down the $FILE or $REPO
  4. Owner of the Repo contacts Github
  5. Github notifies the owner of the repo that it was a DMCA takedown
  6. Owner of the repo provides Github with the Counter-notice.
  7. Github restores access to the taken down $FILE or $REPO

At this point the party issuing takedown must sue the owner of the repo. It cannot go after Github. It also cannot take down the content again using DMCA to github.

Github should think about protecting its users, DMCA takedown request only target copyrighted works, not circumvention measures, I understand Github point of view to minimise its work and legal liability, but they have a lot too lose in the eyes of users here. Maybe Github DMCA take down request is wider than the USA one, but it feel like an abuse in this case.

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