Welcome to GitHub's Guide to the Digital Millennium Copyright Act, commonly known as the "DMCA." This page is not meant as a comprehensive primer to the statute. However, if you've received a DMCA takedown notice targeting content you've posted on GitHub or if you're a rights-holder looking to issue such a notice, this page will hopefully help to demystify the law a bit as well as our policies for complying with it.
(If you just want to submit a notice, you can skip to "G. Submitting Notices.")
As with all legal matters, it is always best to consult with a professional about your specific questions or situation. We strongly encourage you to do so before taking any action that might impact your rights. This guide isn't legal advice and shouldn't be taken as such.
What Is the DMCA?
In order to understand the DMCA and some of the policy lines it draws, it's perhaps helpful to consider life before it was enacted.
The DMCA provides a safe harbor for service providers that host user-generated content. Since even a single claim of copyright infringement can carry statutory damages of up to $150,000, the possibility of being held liable for user-generated content could be very harmful for service providers. With potential damages multiplied across millions of users, cloud-computing and user-generated content sites like YouTube, Facebook, or GitHub probably never would have existed without the DMCA (or at least not without passing some of that cost downstream to their users).
The DMCA addresses this issue by creating a copyright liability safe harbor for internet service providers hosting allegedly infringing user-generated content. Essentially, so long as a service provider follows the DMCA's notice-and-takedown rules, it won't be liable for copyright infringement based on user-generated content. Because of this, it is important for GitHub to maintain its DMCA safe-harbor status.
The DMCA also prohibits the circumvention of technical measures that effectively control access to works protected by copyright.
DMCA Notices In a Nutshell
The DMCA provides two simple, straightforward procedures that all GitHub users should know about: (i) a takedown-notice procedure for copyright holders to request that content be removed; and (ii) a counter-notice procedure for users to get content re-enabled when content is taken down by mistake or misidentification.
DMCA takedown notices are used by copyright owners to ask GitHub to take down content they believe to be infringing. If you are a software designer or developer, you create copyrighted content every day. If someone else is using your copyrighted content in an unauthorized manner on GitHub, you can send us a DMCA takedown notice to request that the infringing content be changed or removed.
On the other hand, counter notices can be used to correct mistakes. Maybe the person sending the takedown notice does not hold the copyright or did not realize that you have a license or made some other mistake in their takedown notice. Since GitHub usually cannot know if there has been a mistake, the DMCA counter notice allows you to let us know and ask that we put the content back up.
The DMCA notice and takedown process should be used only for complaints about copyright infringement. Notices sent through our DMCA process must identify copyrighted work or works that are allegedly being infringed. The process cannot be used for other complaints, such as complaints about alleged trademark infringement or sensitive data; we offer separate processes for those situations.
A. How Does This Actually Work?
The DMCA framework is a bit like passing notes in class. The copyright owner hands GitHub a complaint about a user. If it's written correctly, we pass the complaint along to the user. If the user disputes the complaint, they can pass a note back saying so. GitHub exercises little discretion in the process other than determining whether the notices meet the minimum requirements of the DMCA. It is up to the parties (and their lawyers) to evaluate the merit of their claims, bearing in mind that notices must be made under penalty of perjury.
Here are the basic steps in the process.
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Copyright Owner Investigates. A copyright owner should always conduct an initial investigation to confirm both (a) that they own the copyright to an original work and (b) that the content on GitHub is unauthorized and infringing. This includes confirming that the use is not protected as