A Better DMCA Process

Thanks for the latter clarification.

Except, uh, you cut out the object of this sentence, which is the service provider, not the user.

That is, github, not the user, is supposed to be the person responding expeditiously to remove. Contacting someone is neither "removing" nor "disabling access".

The law is simply not ambiguous here, and github trying to play this game is not likely to go well in an actual court, as much as i'd like it to be the case (i know other companies have been threatened on exactly this point before).

You assert this as if this is how a judge would see it (or as if it is well tested). That seems highly unlikely to me.

It seems to be very easy to make the legal argument that because github knows which forks are copies and which aren't, they have actual knowledge of the ones that are still copies.

512(c)(1)(a)(ii) has the so called "red flag" requirement. "n the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent"

Essentially, if they know about a fork and a reasonable person would know it is infringing, they lose their safe harbor.

Does GitHub have in house counsel? This policy is risky and doing it response to an outcry about actual pirate programs this will look horrendous if they end up in court.

What the DMCA (and similar IP law) gets wrong is persecuting sharers with "intent to distribute". Copyright law was originally intended to protect creators from other people profiting off of their work by copying it. I'm all for the government cracking down on bootleggers.

But I’m very much against the notion that we should go after people who use or view content that is already publicly available. To use your example, the MPAA could and should go after someone who leaks a movie online. But, they should have to prove that the person profited in some way from his or her actions (and correspondingly, the penalty for doing so should be somehow proportionate to that profit). Individual users who share the movie on BitTorrent are not breaking copyright law, because they are not selling copies. It’s really that simple. I personally don’t think that it’s the government’s responsibility to devote resources to tracking down sharers, and certainly not to prosecute them. If we want to consider laws regarding “stealing” intellectual property, we can certainly do that as a society, but that has nothing to do with copyright (trademarks or patents either).

And to be clear, the only thing that new IP laws could address is the potential lost income of content producers. But, there is no way to prove that a sharer would have paid to view that work in the first place. I personally think that this flies in the face of free market economics. The government’s role is to create and manage a fair playing field for all players. So if it is going to start prosecuting thought crime, then it needs to remember its duty and crack down on monopolies and the bribery (ahem, lobbying) that props up media corporations with lifetime-length copyrights and the loss of the public domain through the use of paywalls (among other things). So the DMCA put the cart before the horse by not reinstating the Sherman Antitrust Act, not setting realistic limits on copyright and other IP laws, etc. The DMCA has done nothing to increase the income of new artists, and everything to further enrich established media corporations like Disney (I would argue by design).

We need to also consider that courtrooms and juries are the most important link in the legal chain. By not hearing every case in a court of law, we are passing the burden to individuals to prove their innocence against large institutions (by settling out of court, since they simply can’t afford to lose). I think this flies in the face of the notion of innocent until proven guilty. Whenever I see another child or elderly person being prosecuted for file sharing, it strikes me as being closer to extortion than justice.

So to summarize, I don’t recognize “§ 512 of the DMCA” as necessary or even valid, because ISPs and hosting providers that don’t sell the copies they store are not breaking copyright law in the first place. A website that charges money to view HBO Go’s stream is breaking the law. A website that provides a storage space for a file is not. So the DMCA was not necessary in the first place, and we should be enforcing the laws that are already on the books before creating new ones.

My hope for the future is that we reduce copyright and patent periods to something reasonable like 5 or 10 years, only cover works by copyright (so physical records, books, paintings, movie reels, etc, not bits), invalidate all process patents (so no software, business or medical patents), make it illegal to create laws regarding DRM schemes (in other words, leave it up to the private sector to fight the arms race against cracking), and force worries about whether a work is fair use to be heard in court (judged by people, not metrics). Then I hope that we bring back the Fairness Doctrine to promote broadcasts that are in the public good (real news, not infotainment), more funding for public television and teaching art in school, and bar prosecution for using works for educational and nonprofit purposes.

I think this is a case of, what you are saying about protections for businesses (both producers and carriers) has some validity, but for me, democracy, personal freedom and liberty come first. I don’t want to live in a country where we can be shaken down by corporations because they are worried about their bottom lines.