Are 1201 takedown notices even supposed to be a thing, or were they just invented by the RIAA and/or other overly enthusiastic copyright holders?
I was under the impression that DMCA notices were for the removal of infringing content, not alleged anti-circumvention tools. That's what the law seems to specify. The notification and takedown process is specified for infringement of copyrighted works, not distribution of anti-circumvention tools. EFF's explainer video seemed to concur with the assessment that DMCA notices are not appropriate for 1201 violations, only for removal of infringing content.
1201 enforcement appears to be through other mechanisms, such as criminal liability and statutory damages. Presumably those would require something more than a letter or notice claiming violation.
Right. GitHub seems to have made up a 1201 notice-and-takedown mechanism out of thin air, with this mechanism serving as Microsoft voluntarily doing favors for other big corporations rather than the fulfillment of some kind of legal obligation.
I find the GitHub announcement deeply unsatisfying for that reason: GitHub is unilaterally inventing a body of "law" that's going to meaningfully govern the lives of tons of developers in the future. This body of rules is "law" and not law because the entity doing the enforcement is GitHub and not some government, but GitHub still has enough power to cause injury if it decides it doesn't like you.
> GitHub seems to have made up a 1201 notice-and-takedown mechanism out of thin air
This crystallizes my discomfort with github's approach.
They should have said something like "Thank you for your letter. If we receive any 1201-related injunctions or directives from US courts or law enforcement directing us to remove this repository, we will quickly do so."
> I was under the impression that DMCA notices were for the removal of infringing content, not alleged anti-circumvention tools. That's what the law seems to specify.
My reading is that the DMCA expanded the definition of 'copyright infringement' to include 'circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner' (§1201), and so a DMCA notice specifying 'material that is claimed to be infringing or to be the subject of infringing activity' (§512) would work for the removal of anti-circumvention tools as well.
Infringement of copyright is defined by the statute and does not include the anti-circumvention 1201 provisions.
There is no legally-specified takedown procedure for a 1201 violation, and correspondingly no "safe harbor." The "takedown" here was more in the vein of a demand letter.
> Infringement of copyright is defined by the statute and does not include the anti-circumvention 1201 provisions.
Yeah, my mistake, you're correct the 1201 anti-circumvention provisions do define a new violation separate from copyright infringement itself.
However, there is a circuit split as to whether a violation of section 1201 requires a nexus to copyright infringement to be valid. If an 'infringement nexus requirement' is upheld, section 512 may still cover section 1201 violations by shielding service providers from any copyright infringement liability that would establish a nexus with the circumvention tool.
I don't see this particular issue ever being resolved by the courts in any case, so there's still quite a bit of ambiguity in this connection between the two sections of the DMCA.
I was under the impression that DMCA notices were for the removal of infringing content, not alleged anti-circumvention tools. That's what the law seems to specify. The notification and takedown process is specified for infringement of copyrighted works, not distribution of anti-circumvention tools. EFF's explainer video seemed to concur with the assessment that DMCA notices are not appropriate for 1201 violations, only for removal of infringing content.
1201 enforcement appears to be through other mechanisms, such as criminal liability and statutory damages. Presumably those would require something more than a letter or notice claiming violation.