GitHub 的這篇文章是由 Abby Vollmer 發表的，從 LinkedIn 上的資料也可以看到他以前的經歷都是法律相關，現在在 GitHub 的頭銜是「Director of Platform Policy and Counsel」，而這篇的用字也可以看出來很小心。
首先 GitHub 認為下架的原因是 Section 1201：
Section 1201 dates back to the late 1990s and did not anticipate the various implications it has for software use today. As a result, Section 1201 makes it illegal to use or distribute technology (including source code) that bypasses technical measures that control access or copying of copyrighted works, even if that technology can be used in a way that would not be copyright infringement. Circumvention was the core claim in the youtube-dl takedown.
The Electronic Frontier Foundation (EFF) filed suit against Universal Music Publishing Group (UMPG) asking a federal court to protect the fair use and free speech rights of a mother who posted a short video of her toddler son dancing to a Prince song on the Internet.
Stephanie Lenz's 29-second recording shows her son bouncing along to the Prince song "Let's Go Crazy " which is heard playing in the background. Lenz uploaded the home video to YouTube in February to share it with her family and friends.
In late June 2007, Lenz sent YouTube a counter-notification, claiming fair use and requesting the video be reposted. Six weeks later, YouTube reposted the video. In July 2007, Lenz sued Universal for misrepresentation under the DMCA and sought a declaration from the court that her use of the copyrighted song was non-infringing. According to the DMCA 17 U.S.C. § 512(c)(3)(A)(v), the copyright holder must consider whether use of the material was allowed by the copyright owner or the law.
而環球直接挑明不在意 fair use：
In September 2007, Prince released statements that he intended to "reclaim his art on the internet." In October 2007, Universal released a statement amounting to the fact that Prince and Universal intended to remove all user-generated content involving Prince from the internet as a matter of principle.
The district court held that copyright owners must consider fair use before issuing DMCA takedown notices. Thus, the district court denied Universal's motion to dismiss Lenz's claims, and declined to dismiss Lenz's misrepresentation claim as a matter of law.
同時認為環球濫用 DMCA takedown notification：
The district court believed that Universal's concerns over the burden of considering fair use were overstated, as mere good faith consideration of fair use, not necessarily an in-depth investigation, is sufficient defense against misrepresentation. The court also explained that liability for misrepresentation is crucial in an important part of the balance in the DMCA.
The panel held that the DMCA requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
The UMG-YouTube agreement grants UMG rights to effect the removal of user-posted videos through YouTube’s Content Management System (“CMS”), based on a number of contractually specified criteria that are not limited to the infringements of copyrights owned or controlled by UMG. Klaus Decl., Ex. 4 (Klaus to Kavanaugh letter, Dec. 14, 2011). Dotcom speculates in his declaration that Universal must have sent a so-called “DMCA notification form,” such as the one he printed and attached at Ex. E to his declaration, to YouTube. Doctcom Decl. ¶ 11. But UMG (which interacts with YouTube) does not use that form when requesting the removal of material pursuant to UMG’s contract with YouTube. UMG uses YouTube’s automated CMS system.
