I'm happy that this is now on the front page because that's how fraudulent DMCA requests get fixed :)
The goodwill lost will now surely exceed the money they saved by not doing proper due diligence. I'm optimistic that HackerRank won't make the same mistake again and other companies might take notice, too.
It would be nice if a lawyer got censured for this. That's how fraudulent DMCA takedowns should get fixed.
It would also be nice if Github would implement instant restoration via counternotice as allowed by the DMCA. Implementing only half of the law enables this sort of abuse.
You don't have to be a lawyer to send a DMCA takedown.
Companies have historically gotten away with these reckless takedowns because the law just requires that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." (17 U.S.C. § 512(c)(3)(A)(v))[^1]
In a recent 9th Circuit case, Lenz v. Universal Music Corp[^2], the court held that Lenz could sue Universal Music for a bad faith takedown. Specifically, "failure to [consider fair use] raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law."
However, proving that it was in bad faith could be tricky.
This is still an asymmetric, unfair process. Automatic takedowns from bad faith actors are catered to left and right but you have to negotiate a bureaucracy with manual review to get restoration. The DMCA doesn't require this to receive safe harbor protection.
Provide a form where an up to date contact point can be submitted that you can forward to the plaintiff and then restore the content. It's that simple. They can deal with litigating the dispute from that point on and Github is not responsible.
The goodwill lost will now surely exceed the money they saved by not doing proper due diligence. I'm optimistic that HackerRank won't make the same mistake again and other companies might take notice, too.