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.
