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Ask PG: Has HN ever received a DMCA Takedown Notice?
128 points by jcr on Apr 20, 2013 | hide | past | web | favorite | 49 comments
I thought it was really weird to find the following submission marked [dead] and was curious if it was due to flagging or if it was due to you getting a DMCA notice?

https://news.ycombinator.com/item?id=5579615

[dead] CipherCloud DMCA notice to remove discussion of homomorphic encryption (stackexchange.com) 39 points by dfc 18 hours ago | flag | 16 comments

My bet is it got clobbered by flagging, but if I put on my tin foil hat, flagging until [dead] may have been caused by abusive flagging.

The more important question is whether or not HN has ever received any DMCA Takedown Notices?

You went through the trouble to put a "DMCA" link at the bottom of nearly every page:

https://news.ycombinator.com/dmca.html

In reading through the above, it doesn't say anything about publication of received DMCA notices? It would be great if you published DMCA notices on the ChillingEffects.org site:

http://www.chillingeffects.org/

EDIT: It seems the cause of the [dead] was a duplicate post:

https://news.ycombinator.com/item?id=5579538

But I'm still curious if HN has gotten any DMCA notices?




[IANPG]

Y-Combinator's policy requires all notification to be physically delivered - i.e. US Postal Service or UPS or another delivery service is acceptable. Email is not acceptable - and presumably fax is not either, since no number is listed.

This means:

1. It will take several days for most takedown requests to be acted upon, by which time material will probably have rolled off the front page.

2. There is significant documentation when an entity pursues takedown in less than good faith - and if it came via USPS there could be substantial penalties for any fraud.

3. It makes bulk takedowns more difficult because each notice is required to provide adequate documentation.

In other words, Y-Combinator places a meaningful burden on those claiming violation of copyright, and I suspect that this creates enough friction to eliminate many claims - making HN better, and letting YC staff do more important work.


Are we reading the same policy? I'm looking at https://news.ycombinator.com/dmca.html and I see a fax number of "Fax: 650.360.3189" and "please send a written notice (by fax or regular mail) to the Designated Agent at the address below".

The January 2013 copy of the policy on archive.org lists the same contact information.


I missed it. Faxing still creates friction and significantly so for any attempt at bulk requests.


> I missed it. Faxing still creates friction and significantly so for any attempt at bulk requests.

Does it? It's pretty easy to spool up a lot of faxes if you have an account with an email-to-fax service.


The faxes still come through serially with the receiving machine able to set the maximum rate of transmission. With one phone line and four minutes per fax that's a maximum of 360 requests per day. Send some long outgoing faxes and availability for receiving notices goes down.

In any event, spooling up a lot of faxes would tie up YC's fax machine, not YC's staff.


Couldn't you just use some online faxing service? That would prevent the 360 request/day limit you mentioned. I don't think any place sending mass DMCA take downs would be sending faxes themselves.


I believe his point was that the bottleneck was on the receiving side, not the sending side.


If it was from the one party, then that could be reasonably seen as trying to disrupt their service.


I'm sure that's when the machine would become unplugged and the fax option stricken from the record.


Y-Combinator's policy requires all notification to be physically delivered - i.e. US Postal Service or UPS or another delivery service is acceptable. Email is not acceptable - and presumably fax is not either, since no number is listed.

I'd still be interested to know the legal basis for that policy. I asked about this once before, because having read the actual text of the DMCA it doesn't seem like such a policy would be sufficient to achieve the safe harbour protection, but I'm not a lawyer and I don't think I ever saw an answer on the earlier discussion. If anyone at YC would be willing to share any information they can about their rationale, it might be of general interest to anyone running sites with user-created content, which surely applies to many people reading HN.


From the DMCA:

    DESIGNATED AGENT- The limitations on liability established in this
    subsection apply to a service provider only if the service provider 
    has designated an agent to receive notifications of claimed 
    infringement described in paragraph (3), by making available through 
    its service, including on its website in a location accessible to the 
    public, and by providing to the Copyright Office, substantially the 
    following information:

    the name, address, phone number, and electronic mail address of the agent

    ...

    To be effective under this subsection, a notification of claimed 
    infringement must be a written communication provided to the 
    designated agent of a service provider
This seems to suggest that an e-mail would be sufficient (it is a writing and it is provided to the agent).

At the same time, the actual form to designate an agent implies that the notification should be delivered by mail:

http://www.copyright.gov/onlinesp/agents/n/news_ycomb.pdf

That said, whether YC ignores a notice it gets by e-mail because it doesn't believe it was delivered properly, or because it simply chooses to ignore the notice, the result would seemingly be the same -- YC can be sued for copyright infringement.

If the motivation for complying (or appearing to comply) with the DMCA is to gain the liability protection, YC would want to be easy to contact and act on the notice no matter how they receive it.

If YC isn't actually worried about being sued, which seems reasonable for a site that hosts nothing but minimal discussion and external links, then urging potential notifiers to jump through hoops makes more sense. That minimizes the amount of notices they have to deal with, and their impact on the site.


Fax is listed as a delivery method and a number is given. https://news.ycombinator.com/dmca.html


I've always been curious if this (mail only, no email) is valid under the DMCA.


It must be a "written communication", but the same subsection also requires an "electronic mail address" for the designated agent.

You may have a hard time arguing they meant to require an email address, but at the same time, stuff sent there would not be valid.


I'm willing to bet that Google receive some of the best legal advice on the interpretation of the DMCA, and it seems to me that they do not normally accept notices via email.

From Google's old DMCA page[1] (cached 13 April 2013 - now directs to an automated system):

> To file a notice of infringement with us, you must provide a written communication (by fax or regular mail and not by email, except by prior agreement)

From Google's current support pages [2]:

> Send the written communication to the following address: <postal address> OR fax to: <fax number>

> To file a counter notification with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement)

[1] http://www.google.co.uk/dmca.html [2] http://support.google.com/bin/answer.py?hl=en&answer=112...


FWIW: I work for google, though i'm absolutely not speaking for them.

I'd say you have a reasonable argument either way, my point was more on the side of "A judge may disagree".

Hence "you may have a hard time arguing".


I will note that YouTube accepts DMCA takedown requests via email and the process is rather efficient.


That is probably in their interest, since they do get lots of valid takedown notices. For them it would be easier to streamline the process with email.


Mmmm, I wonder how "oops, it was caught in the spam filter" would work out? At least with mail delivery you can have confirmation of receipt. With email what's the guarantee that the person in charge would look at it?


The recipient has no obligation to act on these notices in the first place. Lost in the spam filter has the same result as purposeful inaction -- the service provider hasn't (by choice or otherwise) taken advantage of the offer of limited liability they could accept by disabling access to the listed content without a court order.


It really shows how badly the DMCA has been drafted then. It never actually defines what "electronic mail" means. This could actually be defined as a fax, because that transmits "mail", "electronically".


"So sue me" creates friction. If sending the request by mail or fax is too much trouble, arguing in court that emails must be accepted probably isn't attractive either.


No, we've never gotten a DMCA notice.

It's less trouble to put a link at the bottom of nearly every page than to think about what pages to put it on.


Hey PG, would you consider open sourcing your DMCA copy, kind of like Automattic's Privacy Policy and Terms of Service? I think there's definitely a need for an open source DMCA notice.


It's only a matter of time before you do get one. If you get a frivolous DMCA claim, will you make good on the bit where you say "Please note that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent that material is infringing your copyright(s)"?


Our lawyer wrote that text. I've never read it.


That text is referring to section 512(f) of the DMCA, which states that any person that knowingly misrepresents a claim of infringement is liable for any damages including costs and attorneys' fees of the alleged infringer.

Basically it's just restating what's already in the law.


It's pretty safe to assume that YC has received DMCA takedowns for stuff on HN given YC has defined a process for dealing with them (https://news.ycombinator.com/dmca.html). It's interesting because really what copyright infringing material can news.yc host other than something posted in a comment? news.yc is after all merely a list of links to external hosts controlled by unrelated 3rd parties.

Generally, if you have a question about what happened to something on HN you should email info@ycombinator.com and someone will reply to you. The terms are quite clear on that. IIRC people have been hell banned for complaining about HN/PG on HN instead of emailing them.


You mean well, but you're mistaken on one thing. Having a registered "Agent of Record" along with contact information and a policy is required to be eligible for "Safe Harbor" provisions. Pretty much any US-based site accepting user contributions must have them to avoid copyright infringement liability. YC/HN having all these requirements filled is entirely normal and expected, so it doesn't really tell us anything. --Heck, I'd be really worried if they didn't have all of the requirements filled.

As my EDIT shows, the [dead] was due to the submission being a unnecessary duplicate post. It turned out to be a bad example for the real question in the title.

Mentioning the [dead] post wasn't a complaint, instead, it was just an example that led to the question in the title of whether or not HN has received any DMCA takedown notices. The follow-on question of whether or not PG/YC would be willing to publish any received DMCA notices on ChillingEffects.org is also viable.

In spite of the poor example link I picked, they're still good questions to ask publicly and it seems a lot of people are curious about the answers. None the less, you are still correct about emailing info@ycombinator being the right way to handle questions about stuff that gets moderated/deleted/edited.

(BTW over the last half decade I've sent in more than enough private bug reports directly to pg with my phone number included so he could contact me. I probably have some minimal "good will" stored up and I sincerely doubt he'd hell-ban me or anyone for a poor choice of example links.)


Thanks. I forgot to mention before, but very clearly IANAL! :)


Comments can be infringing - see "Scientologists force comment off Slashdot": http://slashdot.org/story/01/03/16/1256226/scientologists-fo...


Well, I think it was killed because there was another earlier submission already on HN frontpage with more upvotes:

https://news.ycombinator.com/item?id=5579538


Yeah, I'm pretty sure it was 2 submissions with /q/ vs /questions/ as the only difference. I wish there were a way to merge comments on the two posts.


Yep, it seems the lenient dupe detector is the culprit (and it also seems my tin foil hat is on a wee bit too tight).

Anyhow, I'm still curious if HN has gotten any DMCA notices?


I think I grabbed the link from share and rdl grabbed the url from the location bar. When I noticed the dupe I considered deleting the post but that did not seem like the right thing to do because its not my place to remove other peoples comments.


Yeah, I felt bad because you had better comments, so I was considering deleting mine too, but I'm trying to hit #63 on karma...


Personally I think karma should be based on comments only. I have bookmark's for agl, rdl, tptacek, etc's comments, not submissions. If it is any consolation there are a few people ahead of you on the list that are essentially link spammers. Anyone can submit links all day and accumulate karma. That someone was first to file a story does not signal a lot of information in my opinion. Keep up the good comments and I am sure that you will continue to move up the list.


You went through the trouble to put a "DMCA" link at the bottom of nearly every page

Sites do that so they are in compliance with "safe harbor" laws. It not required to have it on every page of course, but it's probably just a standard footer template so not really a lot of "trouble" to do.


I was thinking about this just the other day. The whole CipherCloud situation got a bit out of hand, I think the company are doing themselves more harm than good as that discussion about their encryption was speculation and interpretation based on publicly available information they had on their site. I don't really see any links disappear from the site, a few changed titles here and there though. Would be great to know if anyone has, especially in regards to the CipherCloud fiasco.


How many DMCA cases are actually pursued? It seems like most DMCA requests are simply scare letters. You could almost ignore all of them and never run into any trouble.


Ignoring a properly formed and delivered DMCA takedown notice results in site owner losing safe harbor from contributory copyright infringement claims. So a site can chose to ignore them, but if they do they can then be sued for their users' actions.


The reason DMCA takedowns work so well as scare letters is that you can get in real trouble for ignoring them. It's not worth the risk.


Meanwhile abuse of DMCA for reasons other than legitimate copyright claims seems (subjectively) to be occurring with increasing frequency, and, with no obvious penalty for the organisations submitting false DMCA takedowns, so are likely to continue, to the detriment of the rest of the us.

I think the "real trouble" should work both ways.


There are penalties for filing a false take down notice. See page 12 of http://www.copyright.gov/legislation/dmca.pdf

"In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f))"


if they are valid DMCA notices and you are under the jurisdiction of the US... pretty sure that's illegal.


False.

The DMCA act is readable; read it.

Effectively, all it does is offer safe harbor for an ISP, with ISP loosely defined.

Congress attempts to offers a pseudo mediation framework to limit/remove liability from the ISP for the acts of its users.

If the ISP complies with the DMCA, the ISP is immune from liability for copyright infringement.

Here's the part the ignorant ignore:

If the target of a DMCA notice sends a COUNTER-NOTICE, the ISP will/must/should put their stuff , else the ISP can be liable for taking it down without case.

Read the DMCA, it's fairly short as these things go.

http://www.copyright.gov/legislation/dmca.pdf

Disclosure: I spent $80k on attorneys defending against a nuisance lawsuit and used the DMCA as a shield.


Actually, if the target of a DMCA notice files a counter-notice, the ISP has to reinstate the content within 10 days unless the person/entity filing the DMCA notice alerts the ISP that an injunction has been filed within a specified period of time. See 17 USC § 512(g)(2)(A)-(C).


No, Title II of the DMCA does not create any obligations for anyone. It is not illegal to completely ignore these notices.

Under copyright law, distributing copies of someone's protected work without authorization is illegal. Many types of internet service providers, as part of fulfilling the service they offer, distribute copies of works on behalf of others. Web hosts serve files their customers have uploaded, video sites stream user uploads, discussion boards serve messages written by users, etc. Thus, an ISP may come to unknowingly distribute copyrighted works without authorization, and would be subject to lawsuits for doing so.

The DMCA offers a way for these ISPs to avoid being sued despite having indeed infringed someone's exclusive rights under copyright law. If they register an agent with the copyright office, and follow a procedure for disabling and re-enabling access to materials they distribute based on certain notices, they then cannot be sued for having hosted that specific material in the past.

The DMCA does not require that anyone register an agent and follow those procedures, it only offers a benefit if you choose to do so.





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