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I've encountered this on Anime and Manga SE over a year ago, but figured that we haven't had a follow-up on that in a while, and it applies to more sites than just that one.

Content on the network can be removed with a DMCA request. It is no longer the case that Stack Overflow uploads these to the Lumen Database, so we do not have as much insight into what the infringed content was (for those of us who cannot see deleted posts).

Additionally, there doesn't seem to be any clean recourse for us to report or contest seemingly bogus take-down requests. One such post identified in a DMCA request targeted at Anime and Manga SE was this post, and in spite of it not having any media, I recall that it was deleted for a short period of time. Obviously that's an abuse of the DMCA system at-large, but I don't believe that there is a good way to really contest that in spite of that being something we can do.

In effect, I'm looking for clarity on the policy here and what could be done to improve it. What is the policy today, and what transparency on this can we expect tomorrow?

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Last time our attorney attempted to explain this to me, it was along the lines of "the law does not allow us to question the DMCA" and that we have to take action, and it's the responsibility of the accused to file a counter-notice (all they need to do is send a properly formatted counter-notice to the same dmca@ email). If we play a role in determining validity, then we become liable and can be sued for damages just as much as the person who posted if we turn out to be wrong. We can't put the entire network at risk to try and do what we and our users would argue is right. That would be fairly irresponsible on our part.

That's not to say we don't still question really weird takedown requests. I've sent at least a couple back to legal seriously questioning what the link to the infringed content had anything to do with the content on our site, and some clarification with the sender revealed it was an error and invalid. But if they had insisted that it was correct and action should be taken, we likely would have still had to take that action.

The only part of this we can improve is the transparency, and it's something we're still working on. We've recently been cooperating with legal in our move to the new support system to make sure DMCA requests remain visible to us at all times, because we're eventually going to start pulling those out of the support system and into an internal archive for safekeeping.

One key feature we want to add is a new lock reason for the question which better highlights that it was deleted due to DMCA and who sent the request, rather than having an unnoticeable comment that's sometimes hidden. This also would prevent the question being subsequently undeleted if the staff member who deleted it ever left the company, or if moderator diamonds ever stop preventing undeletion by the community. It might also provide a way for us to directly link the post to a specific DMCA notice so we don't have to go searching for it later, if need be.

Once that lock reason is in place, we'd retroactively apply it for all the posts we've deleted by simply searching for all the comments/flags we've left describing the DMCA deletion. Having all these locks would allow us to just look for posts with the lock and easily run numbers to generate transparency reports for how many posts/accounts were affected without any additional effort on our part.

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    It's worth clarifying that if a user ever later loses their moderator privileges, posts that were deleted by them can now be undeleted by the community. – Sonic the Anonymous Hedgehog Nov 2 '18 at 18:07
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    There's nuance in "the law does not allow us to question the DMCA" in that "Stack Overflow" could be liable if They defend the content. An FAQ entry from Legal's perspective on this matter would be valuable when a more transparent way to archive and identify these takedowns would be very valuable. – Makoto Nov 2 '18 at 19:29
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    I have a few questions: When a post is removed due to a DMCA claim, who is notified so that they can potentially file a counter notice? Is it just the author of the post? Is it the author of answers on the post? If someone wishes to file a DMCA counter notice with Stack Exchange, where should those be sent? – Andy Nov 2 '18 at 20:00
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    @Andy Only the author of the post is notified. Counter-notices can be sent to dmca@stackoverflow.com same as the notices themselves. – animuson Nov 2 '18 at 20:22
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    How is the author notified? Is it via mod message, email, both? – Andy Nov 3 '18 at 13:35
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    what would happen to a community wiki, who is notified then? I feel that even though the post is the responsibility of the original poster, it does sort of belong to the community.... – Pureferret Nov 5 '18 at 15:51
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    @Pureferret By default only the owner would be notified, but I'm also not gonna make up processes for what would happen to a CW because it's never happened and I kind of doubt it ever will. If it ever did we'd think about what to do at that time. – animuson Nov 5 '18 at 15:53
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    "...and it's the responsibility of the accused to file a counter-notice (all they need to do is send a properly formatted counter-notice to the same dmca@ email)." Um...and then what? SE still can't "...play a role in determining validity..." can it? What's the point of the counter-notice? (And: Wow is the DMCA every bit as flawed as I remember it being, if that legal advice is correct.) – T.J. Crowder Nov 15 '18 at 8:02
  • @T.J.Crowder the details outlined here don't seem flawed to me. The legal advice seems to be that Stack Exchange are allowed to unilaterally refuse to comply with a DMCA request, as long as they're willing to take on liability for any infringement. That seems right; what other system would be reasonable? The fact that, per this answer, the company's legal department have chosen a policy of never contesting DMCA requests - even if they are blatantly obviously meritless and the complainant has no chance to win in court - doesn't seem to me like it's a fair thing to blame the DMCA itself for. – Mark Amery Nov 15 '18 at 13:10
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    @T.J.Crowder When we receive a counter-notice, we are allowed to undelete and restore the post, because the user is claiming it does not violate copyright. We would then notify the party that sent the original notice. It is then up to the two parties involved (the one who filed the takedown notice and the one that filed the counter-notice) to basically battle it out in court. – animuson Nov 15 '18 at 14:39
  • @animuson - Cool, thanks! – T.J. Crowder Nov 15 '18 at 14:41
  • @MarkAmery I'm not sure, but I thought the law doesn't allow a content provider (e.g. SE) to choose how to handle each individual takedown request. They can either automatically honor all requests, in which case they get the benefit of the safe harbor provisions, or they can do something other than automatically honoring all takedown requests, in which case they are liable for infringement. In other words, the policy they chose is the only way they can legally avoid liability for copyright infringement on the network. But again, I'm not sure about that. – David Z Nov 16 '18 at 11:22
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    I rememberd that once SE filed all the incoming DMCA notices into something like the webarchive. But that SE stopped doing that. Perhaps SE can have its own page of DMCA notices, so that we can see who is <strike>bullying</strike> filing complaints and what effect they resorted. – Luuklag Nov 16 '18 at 11:27
  • @DavidZ That would be a terrible way for the law to work, if true. However, it doesn't (to me) seem like the most natural interpretation of what animuson says, here. After a few minutes Googling, I can't find anything that confirms which interpretation is correct. – Mark Amery Nov 16 '18 at 11:54
  • @MarkAmery Oh, sorry to be unclear; that comment was not my interpretation of what animuson wrote, it was based on my prior reading about copyright law. I went back and checked the law and I think 512(c)(1)(A)(iii) supports your interpretation, so maybe I misremembered. – David Z Nov 16 '18 at 12:12

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