1. What's the name of the policy?
https://github.com/github/site-policy/blob/master/Policies/github-terms-of-service.md
2. Is this issue related to a specific section within one of our policies (e.g. the Terms of Service)? If so, please include a link to the section or subsection.
Yes.
https://github.com/github/site-policy/blob/master/Policies/github-terms-of-service.md#e-copyright-infringement-and-dmca-policy
3. Did you already open a pull request? If so, please include a link to the PR.
No.
4. Sometimes it's easier to just put your feedback text into an issue. If that's how you'd prefer to contribute, this is the section to do that.
Yes.
5. Why do you think this section or language needs improvement?
For three reasons, I think this needs an improvement to allow for third parties to submit copyright flags.
First, theres a legal requirement in sweden, for someone that hosts user-generated content without pre-moderation, to take down any copyright infringing content when ANYONE reports, not just the copyright owner.
The law is "Lag (1998:112) om ansvar för elektroniska anslagstavlor" (Law (1998:112) about responsibility for electronic bulletin boards)
Even if the title of the law might be misleading, it does not only apply to forums, but ANY site where a third-party can post content without pre-moderation by a moderator or admin.
And here is an excerpt from that law, stating its requirement to delete or disable access to any illegal content, anytime the site administrator gets notice of that:
"5 § Om en användare sänder in ett meddelande till en elektronisk anslagstavla ska den som tillhandahåller tjänsten ta bort meddelandet från tjänsten eller på annat sätt förhindra vidare spridning av meddelandet, om
...
2. det är uppenbart att användaren har gjort intrång i upphovsrätt eller i rättighet som skyddas genom föreskrift i 5 kap. lagen (1960:729) om upphovsrätt till litterära och konstnärliga verk genom att sända in meddelandet. "
Translation:
"5 § If a user submits a message to a electronic bulletin board, the entity who provides the service should delete the message from the service, or in other way prevent further distribution of the message, if
...
2. Its obvious that the user has infringed on copyright or any other right protected by 5chap law (1960:729) about copyright to litterate and art works, by sending in the message."
Two: Because DMCA does not prohibit taking down material that is infringing on copyright even if a third-party submits the DMCA notice. The only thing is that GitHub isn't required to take down (according to USA law) but they can do so if they choose so.
https://law.stackexchange.com/questions/14084/is-it-prohibited-to-accept-dmca-takedown-notices-from-non-authorized-individuals
Three:
The terms of service does have a section, C-2, "Content Restrictions", that specifically say:
"infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights."
which means, content can be taken down either by DMCA, or C-2.
Thus, I suggest section E, to be updated to:
E. Copyright Infringement and DMCA Policy
If you believe that content on our website violates your copyright, please contact us in accordance with our Digital Millennium Copyright Act Policy. If you are a copyright owner and you believe that content on GitHub violates your rights, please contact us via our convenient DMCA form or by emailing [email protected]. There may be legal consequences for sending a false or frivolous takedown notice. Before sending a takedown request, you must consider legal uses such as fair use and licensed uses.
If you believe that content on our website violates a third party's copyright, please contact us in accordance with our Terms of Service, Content Restrictions Policy. If you are a third party who witnesses that content on GitHub violates a third party's right, please contact us by emailing [email protected]. Please write "C-2 takedown request" in the subject line.
Please note that a C-2 takedown request isn't legally binding, will be judged by GitHub admins and/or moderators, and may be rejected. Only submit a C-2 takedown request if you are completely sure that the copyright owner does not allow that specific content there.
If a GitHub Admin or Moderator approves a C-2 takedown request on your repository, you must send proof of copyright to have the content reinstated. Proof of copyright can be for example written agreements from a copyright owner about permission to use material, a license document, or any other documents that proves you have right to use the material, or proof that you created the material. You can also have the copyright owner to contact us. They will have to prove their position as a copyright owner, and then they can ask to have your material reinstated. We will in the case copyright owner asks us to have material reinstated, also block further C-2 takedowns on that particular repository. (DMCA takedowns will still be valid).
A copyright owner or a entity authorized to act on behalf of the copyright owner, can choose if they want to send a DMCA notice or a C-2 notice. If a C-2 notice is chosen, the content will be judged by GitHub, and material taken down if the C-2 notice is approved. C-2 notices protects you from counter-notices. If a C-2 notice is rejected and you are the copyright owner or a entity authorized to act on behalf of the copyright owner, you can escalate it to a DMCA notice.
We will terminate the accounts of repeat infringers of this policy, regardless of if the takedown notice was a DMCA one or a approved C-2 one.
Also a moral thing to consider:
I can report to the admins that a repostiory contains for example pornography, drug trafficing, promotes illegal activites or other illegal/prohibited content, and have the content taken down.
I can also, if I see someone shoplifting in a store, call the police and also file a formal police report. I don't need to ask the store owner for permission.
Why is it so hard to report copyrighted content to be taken down unless Im the copyright owner?