Are You Sure You Want That DMCA Takedown to Be Permanent?


A content industry dream is to order infringing content to be taken down and for it to remain down permanently, no matter what. That's currently outside the scope of the DMCA, but some anti-piracy outfits are already trying their luck by suggesting that content should never reappear. Perhaps it wouldn't be so bad if they targeted the right stuff in the first place.

With millions of pieces of infringing content hitting the Internet every day, copyright holders certainly have their work cut out when it comes to eradicating piracy.

At the moment this is largely achieved via DMCA and similar notices that require online platforms to remove content, direct links to content, or related search engine results. However, content has a habit of reappearing after deletion so it’s perfectly possible that the same piece could be subjected to multiple complaints on the same platform.

To solve this problem, rightsholders (the music industry in particular) are pushing for a so-called takedown/staydown regime. They argue that once a piece of content has been flagged as infringing, then it should be entered into some kind of database, to ensure that it is blocked from ever being uploaded again.

This kind of system, should one ever be introduced, would require platforms to monitor every user-uploaded file to ensure that their fingerprints don’t already exist in filtering databases. If they did, the uploads would be rejected, regardless of whether the material would otherwise be allowed under Fair Use exceptions, critics say.

While such a regime is far away on the horizon, some anti-piracy outfits like to pretend that it’s already in place today. After issuing a takedown notice, some have a tendency to imply that there’s a need for a platform to act proactively. That happened this week in a notice to Github, but things didn’t go to plan.

Piracy Solution is an anti-piracy company that claims to offer “relentless” 24/7 monitoring for which there is “no alternative.” This week the outfit wrote to Github on behalf of its client Frontend Masters, a company offering training in various web design skills.

“I am the authorized agent for and MJG International, LLC. It has come to our knowledge that is linking, external linking or distributing our content illegally,” Piracy Solution’s agent confidently wrote.

Demanding that Github removes one of its repositories, Piracy Solution went on to suggest that Github is required to proactively filter the same content from its platform in future, to ensure it is never made available again.

“We are requesting that your website not put up or link this copyrighted content in the future. It must not continue to go back up on your site. Please remove it as soon as possible and cease allowing our copyrighted content to be released or linked on your site,” the notice reads.

Continuing, Piracy Solutions declared that the content to be taken down is infringing, not authorized by Frontend Masters, and that its takedown notice is accurate. Sadly, none of these claims were true.

The repository affected by Piracy Solution’s takedown-and-staydown demands is titled ‘Frontend Masters – Advanced SVG Animation Course’ and there is a very good reason for that.

It is operated by Sarah Drasner, who lists her contact email and personal address just in case anyone needs to contact her. If anyone from Piracy Solutions had done so, they would’ve learned that she is the author of SVG Animations from O’Reilly and has given a Frontend Masters workshop on Advanced SVG Animations.

To confirm beyond any doubt, Frontend Masters themselves list Drasner on their very own website while charging access to her SVG Animations course.

After having her repository disabled by Github for copyright infringement, Drasner probably had a few choice words with Frontend Masters. That appears to have prompted Piracy Solutions to completely change their minds about having the content taken down on a permanent basis.

“Thank you for the prompt action in removing this content,” the company told Github.

“However our client Frontend Master was unaware that one of their authors was using and has requested that we issue a retraction of [the takedown notice]. Please let us know if you require anything other than this email for the retraction of the DMCA notice.”

While the Github repository is now in full working order, it’s not difficult to see how a takedown-and-staydown regime could prove problematic when scaled up to potentially hundreds of millions of notices. If companies are able to take down even their own content and request that it never appears again, those set on abuse will be able to cause even greater problems.

That being said, it is crystal clear that copyright holders are tired of the endless game of whac-a-mole and are desperate to reduce their takedown workloads. Whether that can be realistically achieved through the suggested regime will remain to be seen, but for now and aside from the status quo, there are no other serious options on the table.

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