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I have a request. I'd like to ask Stack Exchange corporate to establish a practice of uploading all DMCA takedown requests that it receives for content hosted on the Stack Exchange network to the Chilling Effects Clearinghouse.

The Chilling Effects Clearinghouse is an attempt to document use of the DMCA. It deters abuse of the DMCA by making takedowns public; when a company abuses the DMCA takedown process, everyone can see it and there is an opportunity to name and shame the offending company. The Clearinghouse also benefits legal scholars by helping them to study the use of the DMCA online. Finally, I think it would benefit the Stack Exchange community by sending a signal to companies that we are watching how they are using the DMCA takedown, and that we will notice any abuse of the DMCA process.

I confess that this request is triggered by an incident on Crypto.SE that sure looks to me an awful lot like an egregious abuse of the DMCA. A company (CipherCloud) issued a takedown notice to request Stack Exchange to delete a question that asked about the security of their system. Several answers provided insightful analysis that appeared to reveal serious security problems in their system; none appeared to violate copyright law, as far as I can tell.

I am concerned that CipherCloud just sent a bogus DMCA takedown notice to try to silence their critics. If true, this is harmful to the Stack Exchange Community -- and posting such takedown notices to the Chilling Effects Clearinghouse is the least we can do. I imagine that most DMCA takedown notices are perfectly unobjectionable, but even one abuse of this magnitude is a big deal.

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I don't know why but my immediate reaction to this proposal was "SO. AWESOME!!!" –  BoltClock's a Unicorn Apr 20 '13 at 8:18
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Makes sense. If Google and Twitter does it, I don't see why SE wouldn't. –  Yannis Apr 20 '13 at 8:30
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Wow, that 'incident' you linked is completely and utterly bogus. How in the world is that close to being legal for them to do? –  Richard J. Ross III Apr 20 '13 at 14:29
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@RichardJ.RossIII In matters of copyright, it's effectively guilty-until-proven-innocent. Additionally most people don't have the resources, knowledge or drive to fight back, so DMCA is used to bully people from sharing legal materials. Chilling Effects is meant to showcase this and discourage it. –  Ben Brocka Apr 20 '13 at 14:59
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Just curious: in the email you got SE uses the phrase "to avoid future strikes against your account...". I hope your account was not somehow damaged by this DMCA request? –  Arjan Apr 20 '13 at 15:03
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Sending fraudulent DMCA notices has risks more severe than making your company look bad example. That said, at first blush, I like this idea a lot - sunlight is an awesome disinfectant. We'll look into this, and post a response shortly. –  Jaydles Apr 20 '13 at 15:30
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@arjan We reserve the right to suspend or remove any account that repeatedly posts infringing material. Note that in our capacity as an ISP in relation to the DMCA, we have no opinion on the DMCA's validity. It is up to the original poster to assert that the claim was bogus or without merit. We cannot judge this (in order to retain the protection the DMCA system provides us as a host). –  Michael Pryor Apr 20 '13 at 16:37
    
So, @Michael, even though you're saying you cannot judge the claim, can I still assume any "strike" is a manual action, for which the crew will not solely rely on the take down notice? (Especially D.W.'s answer does not seem to be the target of the take down notice, but merely got deleted as the question was deleted?) –  Arjan Apr 20 '13 at 16:49
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@MichaelPryor: Thanks for pushing this issue internally. At least the original accounts who allegedly infringed will be getting the notification. I think the next step is to submit this issue to the EFF since they were very effective in the Diebold case. Trying to quash the critical discussion of Ciphercloud's encryption technique is pretty weak. Security through obscurity is really not security at all, especially where there are valid, tested, mathematically proven cryptographic methods that can be used. Weak. –  user219829 Apr 20 '13 at 16:55
    
@Arjan the DMCA notice, if not challenged, is the actual "strike" we are talking about, and it only applies to the accounts that posted infringing material. –  Michael Pryor Apr 20 '13 at 17:04
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@MichaelPryor Just out of interest, is there any verification going on at all on SE's side for a DMCA notice? Or could I effectively make a bogus claim on a random post and see it taken down? (Of course with all the potentially trouble it will cause me) Is that usually completely a "let the two parties figure it out" approach for websites? –  Bart Apr 20 '13 at 19:51
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@Bart The only verification is to make sure the DMCA is properly submitted and contains the necessary information. We do not, and cannot, make any judgement as to whether the DMCA is bogus or legitimate beyond verifying that it is submitted correctly. –  Michael Pryor Apr 21 '13 at 2:29
    
While I support the request, I'd also like to point to the practise of responsible disclosure. If the analysis of their code "revealed serious security problems", e.g. exploitable flaws, the vendor should have a chance to fix these before people can read it here or elsewhere. –  Gordon Jun 19 '13 at 6:01
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@Jaydles five months later, any official response? –  Shadow Wizard Sep 29 '13 at 22:20
    
@ShaWizDowArd, thanks for highlighting this - it actually fell through the cracks temporarily, but your comment fixed that. We're nailing down what's involved, but will circle back within a week or two at the most to share whether we can start posting these on a go-forward basis. Thanks again for the ping. –  Jaydles Sep 30 '13 at 22:00

2 Answers 2

up vote 112 down vote accepted
+50

UPDATE (Nov 21, 2013): The DMCA takedowns that we have received over the past year are now posted at Chilling Effects. Please find them at the following links:


UPDATE (Oct 1, 2013): We agree, and plan to do this. @AlexMiller actually got this thing going a while back when you asked for it, but it appears that the ChillingEffects website isn't showing our submissions to date. Alex is looking into what's happening, and we'll update this to status-complete once its working.


I agree 100% and am trying to make that happen. We are attempting to modify our policy and ToS so that all future DMCA notices are immediately posted to chillingeffects (as well as pointed to from our site and the missing question) but are currently waiting for some legal clarification. I can't say whether in this case the notice will be posted, but once the policy is in place, all future notices will. Note: As part of our infringement notifications, we should provide the takedown notice to the accounts who created the alleged infringing content, and we did just do so for the crypto question you referred to.

Source: I am a Director at Stack Exchange, Inc.

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Will it be possible to post all previous takedown notices to ChillingEffects as well? –  Anderson Green Apr 20 '13 at 19:03
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"Source: I am a Director at Stack Exchange, Inc." Now you're just bragging ;P –  Yannis Apr 20 '13 at 23:56
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@Yannis: I think his "bragging" is justified, since I hardly see his name on MSO - at least it prompt me to look at his profile, rather than dismissing this post as unofficial statement. –  nhahtdh Apr 21 '13 at 5:09
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Noticed the ;P at the end of my comment @nhahtdh? It means I wasn't being serious... –  Yannis Apr 21 '13 at 5:12
    
@michael-pryor: Will you also be engaging EFF? I'm in the DMCA notice. –  DeepSpace101 Apr 21 '13 at 6:13
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You say that even if the general policy requested here is created, the CipherCloud notice might not be posted. Why? If you agree with the policy in principle, what would stop you from applying it to the CipherCloud case? –  Mark Amery Apr 21 '13 at 11:59
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They have to change the ToS and policy. That means that anything they add will not be valid for the CipherCloud incident. –  Jacob Apr 21 '13 at 18:19
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Sorry to bother you; I'm looking for an update on this. I posted a bounty here a while back, and am looking for an update. Thanks! –  Emrakul Aug 3 '13 at 1:26
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@michael-pryor: Those that issue DMCA notices are not StackOverflow users (or at least don't have to be). So, how can ToS apply to them? –  kubica Sep 12 '13 at 7:17
    
@Jaydles, two days after your edit here, elsewhere you wrote "we do publicize DMCA requests". If I understood correctly, then care to edit that into this answer and set the question to status completed? (Thanks!) –  Arjan Oct 24 '13 at 15:33
    
Arjan, we are submitting them today. Chilling Effects still doesn't appear to be displaying them, though. We're trying to nail down why. As soon as we confirm the new ones are publicly visible, I'll update this, but I don't want to claim victory for "doing our part" if it isn't actually resulting in the main goal, which is obviously public visibility. –  Jaydles Oct 24 '13 at 16:03
    
They also posted this today - was it a bug on their side or something else? –  Shadow Wizard Nov 21 '13 at 19:38
    
What about this one? Random Number Seed Generator: Using System On Time - Code example removed due to DMCA Request by D. Wagner –  CodesInChaos May 2 at 18:16

There is a copyright "catch 22". I have taken part in issuing a couple of DMCA notices myself. And yes, some of them were addressed to Stack Exchange Inc. DMCA notice has to precisely identify the infringed material, which often means that it is cited there (in parts or in whole). Publishing DMCA notices implies publishing the cited material ... what is exactly against the intention of the DMCA notices.

So, +1 for transparency, but -1 for publishing notices in whole.

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Just curious: if some of them applied to SE, then what are you protecting? (If you already issued some, then this makes me wonder if copyright issues are bigger on SE than I'd expect.) –  Arjan Sep 12 '13 at 7:17
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I'm skeptical of the claim about a "catch 22". I would not be surprised if publishing a DMCA notice is covered under fair use. After all, EFF's DMCA Clearinghouse published tons of DMCA notices (as do major providers like Google), and they've never gotten in trouble. Bottom line: this answer makes legal claims, but I'm skeptical about relying upon legal advice from someone who is not a lawyer. –  D.W. Sep 12 '13 at 16:42

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