[zackmorris]

I can't help but think of the Snapchat breach. Surely the world understands that once something is on the internet, it's there forever, right? Complying with the DMCA is security theater at best, and at worst, stifling to innovation.

I mean, we have many laws centered around the difference between intentionally and unintentionally inflicting harm on others. So for example if you break someone’s rib performing CPR, you’re protected as a good samaritan. Or if you veer off the road and run someone over because you were texting, you can still be tried for manslaughter because you shouldn’t have been typing on your cell phone in the first place. I think we can all agree that it’s good we have these types of laws and don’t just focus on premeditated crime.

But the DMCA tries to be a moral compass when it’s not mathematically possible to do so. It’s a bit like setting up a booth on the Grand Canyon that charges money to take pictures. Sure, they can bust bootleggers that set up black market booths without a license. They can even bust scalpers selling photos. But in the end, the Grand Canyon is still there.

Whether someone gets irate about piracy/copying trade secrets or not, in the end, perhaps as a society we should ask if it makes any sense to spend tax dollars trying to stop something that can’t be stopped once the cat’s out of the bag.

Actually, I think GitHub is in a unique position to not comply with the DMCA. It has nothing to do with the size of GitHub, because no matter how large a private entity is, it is always subject to the laws of its government. It has more to do with the fact that every developer in the world has either heard of GitHub or uses it every day.

In other words, we are the people that form what can be thought of as the technology arm of society, so by extension the technology arm of government. That gives us a seat at the table in matters of technology, the same way that teachers unions are able to influence education or the American Medical Association can influence public health. If we decide that the DMCA is not a good use of taxpayer money and should no longer be enforced (in fact can’t be enforced), then it’s not up to a court to decide that, since they will side with the law every time (as they should). The law itself is what must be adjusted or repealed, by the people who have the means to do so by virtue of the role they play in society. We have the leverage to repeal it because without our support, there is no expertise to enforce it in the first place.

If GitHub complies with the DMCA and we use GitHub, then we are quietly endorsing the DMCA.

[dangrossman]

> If GitHub complies with the DMCA and we use GitHub, then we are quietly endorsing the DMCA.

I happily endorse § 512 of the DMCA. Not only is the safe harbor provision a well-balanced law for all parties involved, but it's the only thing that makes startups that host UCG legally viable. Without the DMCA, Github could not exist. They'd be personally liable for every copy of every file they distribute without a copyright holder's permission.

This particular piece of the DMCA doesn't have to eliminate all piracy online to be effective. Take the case of a feature film release -- a $XXXMM investment by the copyright holders into their product -- that could be seriously harmed to the tune of tens of millions of dollars by someone leaking a copy online a few days before ticket sales begin. The DMCA notices can disable the most visible (and most damaging) copies, expeditiously enough to save the film's box office sales. Mitigating much of the harm is better than nothing.

> perhaps as a society we should ask if it makes any sense to spend tax dollars

This part I don't get. The alternative to the above is an emergency court hearing for every instance of infringement, hoping to attain an emergency injunction, then get it to an ISP before too much damage is done. The safe harbor provision doesn't (directly) cost tax payers anything. It saves us billions. Every day, hundreds or thousands of instances of copyright infringement are handled by an e-mail instead of a taxpayer-funded court hearing.

It sounds to me like you're making an argument against copyright, not the DMCA. DMCA § 512 (the notice/counternotice safe harbor system) is about mitigating the legal liability created by the copyright act on service providers. In its entirety, the DMCA was the US's implementation of the WIPO Copyright and Performances and Phonograms Treaties. It is not what created copyright protection itself.

[zackmorris]

I was surprised to get down voted for my comment, but, that's a perfect example of the chilling effect that the DMCA has had upon discussing freedom in the information age.

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.