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I asked Github to take down some infringing Capcom content. I'm 100% sure that the Capcom doesn't want the content there because it's software to bypass their copy protection. I specifically asked Github to bypass the DMCA route and instead call the takedown a "ToS takedown" or something else just to let a non-authorized third-party request content to be removed, and took it via their regular form instead of their DMCA form just to get the content removed via a another route.

I got the following reply:

Hi Sebastian,

Thanks for your question. Unfortunately, the law prevents us from accepting DMCA takedown notices from individuals who do not have authorization from the copyright owner. You can read more at our DMCA Takedown Policy page:

https://help.github.com/articles/dmca-takedown-policy/

Please let me know if you have any other questions.

Best, Elizabeth

Now to the question:

Is it actually prohibited to take down content if a non-authorized individual sends a DMCA notice? What I have understand, DMCA sets the minimum requirements (what you must take down), and then you can take down more material than that, because it's your site. Nobody forces you to have user-submitted content that you don't want (let's say off-topic content or whatever).

I understand that a "DMCA notice" from a non-authorized individual is not a valid DMCA notice and the site are not required to take down the infringing material, but are they prohibited from doing that if they choose so?

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There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned).

  • So basically, you won't get Safe Harbor if you pro-actively take down content without following the exact DMCA procedure? Eg, if User A posts copyrighted content, Site B takes it down without notice or Site B takes it down based on improper notice. Does that mean the copyright owner could sue the site for copyright infringement for the time the material was up, because the paperwork was not exercised correctly? (when the copyrighted material would actually be up longer if the precise procedure was followed) – sebastian nielsen Sep 20 '16 at 0:34
  • If Victim does not give proper notice, Provider has not violated the safe harbor conditions, so they are still available to him w.r.t. infringement (regardless of whether he takes the material down sometime) – that's about Victim v. Provider, subsection (c). Subsection (g) is about User v. Provider, and provides protection against liability as long as protocols are followed. – user6726 Sep 20 '16 at 4:18
  • Now I understand. Basically, a user subscribed for a for-pay service, for example webhosting, and the host takes down the user's website because of a improper, non-authorized DMCA notice, the user could sue the provider for the expenses of loss-of-service. But I fail to see how subsection (g) would apply to a free service, such as github, pastebin or such? Then theres no costs to sue for with regards to User vs Provider? – sebastian nielsen Sep 20 '16 at 5:15
  • Lawsuits aren't always over recovering payments for service not rendered. I'm not certain what damages a github contributor could establish, but I wouldn't want to find out the hard way. That's why the lawyers get the big bux. – user6726 Sep 20 '16 at 5:24
  • Pretty sure that there's an explicit requirement for the person making the take down notice to be authorised. 17 U.S. Code § 512(c)(3)(A)(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. – jimsug Sep 20 '16 at 7:03
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There are two completely separate problems: (a) are you allowed to send a DMCA notice if you are not authorised? (b) Is a service provider allowed to take down a work if they receive something that looks roughly like a DMCA notice, but isn't one?

As Jimsug said, a requirement for a proper DMCA notice is "17 U.S. Code § 512(c)(3)(A)(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Without that signature, claiming that the signer is authorised, it's not a DMCA notice. With your signature, and a false claim that you have authorisation, it's a DMCA notice as far as you are concerned and you're on the hook for perjury. (In that case, the service provider is in a strange situation. It is not a DMCA notice because the signature by an authorised person is missing, but they cannot easily determine this fact).

Many service providers have no duty towards you. For example, law.stackexchange.com probably has no duty to preserve my posts and can delete them at any time for any or without a reason. If they remove this post because of a fake DMCA request, there's nothing I can do.

If they have a duty towards you, say a commercial site that charges you $100 to post your opinion on any subject, it would depend on whether the request was such that they should have known it was not a valid request, or not. Since the DMCA requires prompt action for correct DMCA notices, I would suspect that you lose if it requires careful analysis of the notice (even if it may be obvious to someone knowing all the related laws).

  • It wouldn't be a perjury if you don't claim to be authorized. So signing it with a own signature, but not checking the box that you are authorized or owner, would not count as perjury, same with DMCA forms that completely lacks that statement. Most DMCA forms does have such a checkbox or statement, and then they usually reject the report if the box is not checked, but for forms lacking one, I would say its safe from "your side" to submit the form. – sebastian nielsen Sep 22 '16 at 4:05
  • @sebastiannielsen: Changed it - it needs a signature and a claim that you have authorisation. – gnasher729 Sep 22 '16 at 9:08

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