Today we reinstated youtube-dl, a popular project on GitHub, after we received additional information about the project that enabled us to reverse a Digital Millennium Copyright Act (DMCA) takedown.

At GitHub, our priority is supporting open source and the developer community. And so we share developers’ frustration with this takedown—especially since this project has many legitimate purposes. Our actions were driven by processes required to comply with laws like the DMCA that put platforms like GitHub and developers in a difficult spot. And our reinstatement, based on new information that showed the project was not circumventing a technical protection measure (TPM), was inline with our values of putting developers first. We know developers want to understand what happened here, and want to know how GitHub will stand up for developers and refine our processes on these issues.

In this post, we provide answers to common questions about the DMCA and why GitHub handled this case the way we did, describe why circumvention claims deserve special treatment, and share how we’re updating our policies and fighting to improve the law.

Why did GitHub process this takedown in the first place?

As a platform, we must comply with laws—even ones that we don’t think are fair for developers. As we’ve seen, this can lead to situations where GitHub is required to remove code—even if it has a multitude of non-infringing uses—if it is in fact designed to circumvent a TPM. But this is exceedingly rare.

Less than two percent of the DMCA takedowns we process are based on circumvention claims, and of those two percent, this was a particularly unusual case.

DMCA takedown claims based on circumvention are a growing, industry-wide issue for developers with far-reaching implications. We’ll get into this in more detail, but first, here’s some quick background.

Circumvention claims under the DMCA

Most takedown notices we receive allege copyright infringement—that someone used their copyrighted work (often software code) in a way that infringes their rights. But as many people noticed, the youtube-dl takedown notice fell into a more unusual category: anticircumvention—an allegation that the code was designed to circumvent technical measures that control access or copying of copyrighted material, in violation of Section 1201 of the DMCA.

Section 1201 dates back to the late 1990s and did not anticipate the various implications it has for software use today. As a result, Section 1201 makes it illegal to use or distribute technology (including source code) that bypasses technical measures that control access or copying of copyrighted works, even if that technology can be used in a way that would not be copyright infringement. Circumvention was the core claim in the youtube-dl takedown.

GitHub’s developer-focused approach to the DMCA

GitHub handles DMCA claims to maximize protections for developers, and we designed our DMCA Takedown Policy with developers in mind. Nearly every platform with user-generated content accepts and processes DMCA takedown notices to comply with the law. For GitHub, many of those notices come from developers wanting us to enforce the terms of their open source licenses, for example, when someone is using their code without the proper attribution required by the open source license they adopted. Here are ways our approach protects developers:

• Given the cost to developers of an unwarranted takedown of code, we ensure we have a complete notice before we take action. We distinguish between code that merely can be used in an infringing way and code that is preconfigured to be used a certain way. We also recognize that code can provide access to copyrighted content without violating the law (for example, fair use). In some cases we can keep a project up because the content identified in the takedown notice is not in fact infringing or circumventing a TPM that controls access or copying of copyrighted works.
• Our process sets a higher bar for 1201 claims than the infringement claims we typically get. We require complainants to provide additional information specific to circumvention, and to describe the technical measures and how the project is designed to circumvent them, for us to consider a notice complete. Below we explain how we’re further strengthening our process.
• Whenever we process takedowns, we notify all the affected repository owners about the takedown and give them options to dispute it. We allow the repository owner to make changes to address the allegations in the notice and in many cases, we can keep projects up because they do.
• We are transparent with the developer community about DMCA takedown notices. Every time we process a DMCA takedown notice or counter notice, we publish the text to our DMCA repository, dated on the date we process it (as opposed to when we receive it), so that anyone can see the notice and the basis for our action.

These are all steps we currently take to help developers, which go beyond our legal obligations and typical industry practice while still meeting the requirements of the DMCA.

youtube-dl

As we explained, the key claim in the youtube-dl takedown is circumvention. Although we did initially take the project down, we understand that just because code can be used to access copyrighted works doesn’t mean it can’t also be used to access works in non-infringing ways. We also understood that this project’s code has many legitimate purposes, including changing playback speeds for accessibility, preserving evidence in the fight for human rights, aiding journalists in fact-checking, and downloading Creative Commons-licensed or public domain videos. When we see it is possible to modify a project to remove allegedly infringing content, we give the owners a chance to fix problems before we take content down. If not, they can always respond to the notification disabling the repository and offer to make changes, or file a counter notice.