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