I received bogus DMCA complaints (over Big Buck Bunny, lol, multiple times), and Google stonewalled me when I tried to find out the identity of the complainant so that I could litigate against them.
I expect situations like that contribute to the lack of response, along with the fact that providers often ignore DMCA complaints or put things back up without following the statutory takedown period.
Probably shouldn't drip gasoline on this smoldering dumpster fire, but pretty much anyone at a high political level that testifies "I can't remember" is probably committing perjury, yes. Oh well.
This is why you should never host your open source project on a US server. You're one DMCA notice away from being destroyed, needing a lawyer to counter claim properly, etc. This is insanity.
Perhaps you're right, but perhaps DMCA takedowns are a preferred alternative to what the MPAA does in other situations, like the Kim Dotcom raid in NZ.
> This is why you should never host your open source project on a US server. You're one DMCA notice away from being destroyed, needing a lawyer to counter claim properly, etc.
This is an excellent takeaway that should be upvoted.
Yes, you can, and there's nothing the victim can do about it. Many service providers won't even give you the details of the person who submitted the notice so you can sue them (Google, for example).
Presumably, you'd have to succeed in that notice leading to a takedown. The 10 day waiting period only presumably kicked in when GitHub decided the DMCA was valid and actionable.
No, Github has no discretion in this process. Their only job is to follow the policy to the letter: provide the notice to the presumed offender and disable content, then forward the counter-notice to the original complainant and re-enable the content in 10 days.
That is absolutely untrue. Github could ignore the notice or put the content back up immediately. If they do so, they may lose the DMCA safe harbor for this complaint-- but if there is no credible infringement, that isn't of much consequence.
To do that is to assume all legal risk themselves, such that should a suit be forthcoming, it's against them, and far less likely to be thrown out, even if it's not credible. They're more likely to have to pay legal fees, and have lost legal protections.
The issue isn't their actions, it's that the process requires a 10 day wait, regardless of whether the content is infringing or not.
GitHub can decide a takedown notice is facially invalid. Of course if it's later found that they're wrong by a court of competent jurisdiction, they'd be in trouble, so they're likely to be extremely conservative in making this determination.
I'm curious to know whether platforms ever even bother to evaluate takedowns, beyond the most basic fact-checking (e.g. the item to be taken down is spelled properly). It seems like one of those cases where the risk of getting it wrong outweighs the benefit of trying to discriminate between good and bad requests.
Sometimes. Not as often as they should, but they will at least reject keyword-based delisting requests for obviously innocent web properties like Wikipedia or IMDB (typically because they have an page about the movie that some overzealous "copyright defense" outfit is trying to protect).
The way I read it, they are required to wait 10 days. I think in part to give the complaining party time to go to court if they think there's a true infringement.
You’d think so, but not. This part of the DMCA has repeatedly been used with the specific intent of censorship. You force content offline for a potentially important period. For example, though I’m unaware of a case, you could issue a DMCA takedown for the last ten days leading up to an election and there is nothing the victim can do.
Edit: Just realized there’s nothing distributed about it.