Bypass Paywalls Clean Shut Down For DMCA Anti-Circumvention Violations
For many traditional newspapers reliant on sales of a physical product, the rise of the internet as an integrated publishing, distribution, and content consumption platform, disrupted almost everything.
With new opportunities came new challenges. Popularity of free-to-consume digital versions had a tendency to cannibalize print sales. Advertising revenue that once kept digital publications online, later began to diminish. That was partly explained by the rise of browser-based ad blocking software, itself a response to the rise of aggressive and intrusive advertising.
When publications of all kinds began putting content behind paywalls, accessible only by those with a paid subscription, that helped some publications to survive, even thrive in some cases. For readers unable or unwilling to commit to a subscription, technical solutions were available. Bypass Paywalls Clean (BPC) is probably the most famous of them all.
Publishers Run Out Of Patience
Available for Chrome and Firefox, BPC is an easily-installed browser extension that enables users to bypass paywalls and access content without paying for the privilege.
For publishers hoping to increase revenue where advertising had previously failed, the extension is seen as financially problematic. In April, a takedown notice targeted BPC on developer platform GitLab; the main repo was taken down and never reappeared.
On Monday, another takedown notice targeted BPC’s repo on GitHub. Unlike the GitLab notice, full details of who sent the complaint and the legal basis cited for BPC’s removal, we made available under GitHub’s transparency policy.
News Media Alliance (NM/A), an organization that represents the interests of 2,200 publishers of various kinds, initially wrote letters to GitHub. The organization explained that its complaint wasn’t a straightforward copyright infringement matter actionable under Section 512 of the DMCA.
The notification published yesterday signaled the end of that process and explains the basis for NM/A’s complaint.
“The NM/A represents over 2,200 news, magazine, and digital media publishers in the United States and internationally on all matters affecting the publishers’ ability to provide essential services to their communities,” the notice reads.
“N/MA’s members publish copyrighted content on websites protected by paywalls which the technology identified below [BPC] circumvents. NM/A submits this notice to further the interest of its members and to inform GitHub that the identified technology violates Section 1201 of the Digital Millennium Copyright Act (DMCA), which prohibits circumvention technology.”
The N/MA Complaint Against BPC
N/MA’s correspondence identified a total of four “unlawful products” titled bypass-paywalls-chrome, bypass-paywalls-firefox, bpc_updates, and bypass-paywalls-clean-filters, each in their own repository. While most takedown requests claim that the targeted content is an infringing copy of a copyrighted work, the N/MA complaint centers on software that facilitates access to copyrighted content, by circumventing technological measures.
“The precise paywall technology deployed by N/MA members differs from member to member, and from site to site, with some using [redacted by GitHub] and others using hard paywalls (where content is not available until such authentication),” N/MA explains.
“Regardless, N/MA members deploy password-protected sign-in technology to allow subscriber-only access to its protected content, either for all content or after a user has accessed a certain number of articles. These password requirements clearly suffice as technological protection measures within the meaning of the DMCA.”
N/MA goes on to claim that BPC provides access to paywalled content in one of two ways, depending on paywall type. One method seems to have been redacted while the other is left intact.
“For hard paywalls, it is our understanding that the identified Bypass Paywalls technology automatically scans web archives for a crawled version of the protected content and displays that content,” N/MA writes.
“Unlawful Anti-Circumvention Technologies”
The legislation at the root of the N/MA complaint is also detailed in the takedown notice.
“The ‘Bypass Paywalls’ technologies that GitHub, Inc. offers on its site are unlawful anti-circumvention technologies under the DMCA. See 17 U.S.C. § 1201(a)(1). As the DMCA makes clear, any technology or product designed to ‘circumvent a technological measure that effectively controls access to a [copyrighted] work’ is a prohibited anti-circumvention tool,” the notice states.
Under 17 U.S.C. § 1201(a)(3)(B), a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
“The ‘Bypass Paywalls’ technology, by its own terms, is a technology created to ‘bypass’ our members’ paywalls. The technology, moreover, falls within the precise category of technologies that motivated the enactment of anti circumvention provisions in the first place.”
Anti-Circumvention Claim Taken as Valid
When rightsholders allege violations of the DMCA’s anti-circumvention provisions, GitHub carefully reviews those claims and where appropriate, provides repository owners with a time-limited opportunity to make changes to ensure compliance with the law.
While that included the owner of the four repositories mentioned earlier, GitHub determined that a total of 3,879 repositories were affected by the same claims.
In the absence of changes being made, GitHub processed the takedown notice against the entire network, which disabled 3,879 repositories, inclusive of the parent repository.
While this means there’s unlikely to be a future for BPC on GitHub, its future in general is unknown. Some projects can continue on other platforms but since BPC requires maintenance to function at its best, that may limit its options moving forward.
From: TF, for the latest news on copyright battles, piracy and more.
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