GitHub’s user search page currently reports a healthy 108 million users but that still means a few billion internet users are missing out.
While notable alternatives exist, GitHub is a goldmine of information, ideas, and free education. That’s before considering the mountain of open source software available for download.
From those building promising software from scratch to those who just love to tinker, GitHub has something for everyone. But like all sites hosting user-generated content, GitHub regularly finds itself in the middle of third-party copyright disputes in need of a solution.
Software that may appear problematic at first glance cause almost no problems for Github. Powerful torrent site search tools, indexing software, and automatic content downloaders are rarely an issue. The same can’t be said for dedicated movie and TV show downloading apps advertised precisely for that purpose.
Other pieces of code exist in contested gray areas, with the 2020 takedown of youtube-dl perhaps the best example. That matter is effectively ongoing, with GitHub making a stand for the future freedoms of developers in the appeal of Yout vs. RIAA.
Since GitHub publishes all DMCA notices publicly, everyone gets an opportunity to see the law in action, beginning to end.
GitHub Transparency Report 2022
In 2022, GitHub received and processed 2,321 valid DMCA notices, an increase of almost 27% over the 1,828 notices reported for 2021. For reasons we’ll outline later, this shouldn’t be considered a major issue.
All DMCA notices for 2022 are available for viewing in GitHub’s DMCA repo, covering instances where GitHub took content down or asked users to remove infringing content instead.
Asking GitHub users to remove or modify content can help to prevent an entire repo from being taken offline – particularly useful when other projects rely on the original repo’s code.
Processing Erroneous, Abusive, and Other Notices
Thanks to transparency reporting in general (Google is the largest contributor by volume), abuse of the DMCA takedown system is regularly exposed. Most commonly, fraudulent notices are used to wipe out legitimate content.
In other instances, DMCA notices may go further than the law allows, contain errors, or even massive blunders. The targets of those notices can object via a DMCA counter notice. If the notice sender does not initiate timely legal action in response to a counter notice, disputed content is reinstated.
Some notices may present an opportunity to fix problems less formally, and GitHub can sometimes play a role in helping the parties reach an understanding, including by the sender retracting the complaint. Reversals apply when a seemingly valid DMCA notice is processed by GitHub but then invalidated by subsequent information.
“[W]e received and processed 36 valid counter notices, one reversal, and seven retractions, for a total of 44 notices that resulted in content being restored in 2022. We did not receive notice of any legal action filed related to a DMCA takedown request during this reporting period,” GitHub reports.
In any event, GitHub seems to work harder at resolving issues than other major platforms, which is a plus in a widely abused takedown system.
Narrowly-defined exceptions aside, software designed to circumvent technological protection measures, in place to protect underlying copyrighted content, is likely to violate section 1201 of the DMCA. Manufacturing, importing or offering these tools to the public is prohibited so if GitHub receives a complaint, a response is required.
As the continuing youtube-dl controversy demonstrates, a middle ground exists where rightsholders believe they have a clear anti-circumvention claim but others completely disagree. As a result, GitHub routinely scrutinizes claims made under section 1201.
When rightsholders file an anti-circumvention complaint with GitHub, the platform seeks additional information before taking action against a repository. Complainants are asked to supply information on the technical measures, explain how they effectively control access to copyrighted material, while showing that the project on GitHub circumvents those measures.
A unique feature of anti-circumvention notices is the lack of an official counter notice. That may explain why so many rightsholders have used them in place of regular takedown notices over the past several years. GitHub has certainly seen an increase.
“The proportion of takedown notices that allege circumvention increased significantly in 2022 compared to 2021,” GitHub reports.
In 2022, 15.7% of all notices sent to GitHub alleged circumvention, compared to just 5% in 2021. In 2020, similar allegations appeared in just 3% of notices.
Back in 2018, less than 2% of notices carried a circumvention claim. GitHub says it’s conducting an investigation to shine more light on the growing popularity of these notices.
Content Taken Down Overall
In 2022, GitHub took down 25,501 projects, including repositories, gists, and GitHub Pages sites. After processing counter notices, retractions, and reversals, 114 projects were subsequently reinstated. The final figure for 2022 was 25,387 projects permanently taken down, a 31% increase over the 19,276 projects reported in 2021. GitHub appears unconcerned.
“The number 25,387 may sound like a lot of projects, but it’s less than .02% of the more than 200 million repositories on GitHub in 2022,” the Microsoft company notes.
Receiving no complaints for 99.98% of uploaded content is quite an achievement but for some rightsholders, that’s still not good enough.
In notices sent to Google, they demand the removal of Github URLs from search results. They fail to achieve that goal 90% of the time showing once again that if content needs to be removed, the only effective method is targeting the source.
GitHub’s Transparency Report 2022 can be found here