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Comment by naikrovek | Hacker News Reader

the law says that GitHub (in this case) must take down the repo if a DMCA claim is made. the reason doesn't matter, the identity of the claimant doesn't matter, and the repo in question doesn't matter.

the owner of the repo that has been taken down can file a counterclaim (that may not be the word, I am not a lawyer) which the original DMCA-thrower must respond to within 10 days. if they do not respond in 10 days, or the response is insufficient in some way, the repo goes back up.

this whole time there is nothing GitHub can say to anyone that changes anything, and they would be foolish to comment on ongoing legal disputes, anyway.

most repos come back up after 10 days, I imagine, especially the ones taken down by unjust claims.

so, just because it's been 9 days with no communication means exactly nothing.

the law mandates this process, and GitHub must follow it.

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So if I sent a DMCA notice against every one of Microsoft's Repos on Github, they would go down for ten days if I ignored the counter-claim? Because if not, why not?

Because that'd be perjury, which is a federal crime.

https://docs.github.com/en/site-policy/content-removal-polic...

I'm just gonna quote GitHub "The DMCA requires that you swear to the facts in your copyright complaint under penalty of perjury. It is a federal crime to intentionally lie in a sworn declaration. (See U.S. Code, Title 18, Section 1621.) Submitting false information could also result in civil liability — that is, you could get sued for money damages. The DMCA itself provides for damages against any person who knowingly materially misrepresents that material or activity is infringing. "

Seems like no one has ever been prosecuted for perjury on a DMCA take down notice. This feels like more of an empty threat by Github to prevent false DMCA complaints, but of course submitting claims on their repos would be one heck of a way to test that.

https://law.stackexchange.com/questions/51541/has-anyone-bee...

a lot of the "infrastructure" within the legal community, including laws themselves, assume that the attorneys practicing the law are operating in good faith and with ethics in mind. It's clear these days that there are quite a few attorneys who are simply not operating in good faith.

The law also recognizes that attorneys work for their clients and with in many ways are obligated to do what the client wishes. that includes "fucking around" with the law, it seems. Legal ethics rules are supposed to prevent the worst of it, but because it happened so rarely prior to the current day, the legal system has developed no "antibodies" against this kind of behavior.

it is also becoming clear to attorneys that there is little or no punishment for malevolent behavior except in extremely egregious situations, so expect this trend to continue for a while until some remedy is developed.

I dont know how it all ended up, but there was this whole thing https://torrentfreak.com/digital-trails-how-bungie-identifie... [not for purjury though]

Wouldn't there effectively be no penalty if it were submitted by a user in another country? Also good luck proving that anyone "knowingly materially misrepresents" anything.

You should give it a go - in reality these rules are for people hosting other people’s content (as in GitHub hosting your project), and filing against MS repos probably falls in a grey area, or an area where MS is more likely to say F you.

The problem is that the DMCA is designed to explicitly allow and encourage weaponisation of fraudulent take down claims. Specifically in GH doesn’t obey the DMCA and pull the repo the DMCA makes them legally liable for the alleged infringement. Why would they take on that risk for any random organization/project that likely can’t afford the legal costs?

Github is allowed to ignore dmca requests which are blatently not valid. (As an example, wikimedia ignores about 95% of dmca requests it gets https://wikimediafoundation.org/about/transparency/2022-1/dm... )

Not a lot of incentives to do so though because if they are incorrect about it they just took on a lot of liability.

Do yout get reimbursed for 10 days of lost traffic/productivity then? There should be a safeguard, that the maker of the claim would cover damages caused by the invalid claim...

Lying in legal documents is already illegal. DMCA takedown done in bad faith can in theory be prosecuted or brought to trial but in practice nobody cares enough to spend time and effort on getting false claiments in front of a judge.

My understanding is no.

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