Software Takedowns Need Specifics, Not Vibes

Software sits apart from other copyrighted works because nearly every project builds on code written by someone else. A single project disappearing — whether from a DMCA takedown or a lawsuit — can ripple outward to thousands of downstream developers. GitHub has seen this play out in real incidents like left-pad and mimemagic, where a small package's removal broke countless builds. That fragility is why GitHub's DMCA process is designed around the legal requirement that takedown requests point to specific content. Developers need a real chance to strip out infringing material while keeping the rest of the code available for others to use, modify, and study.

Keeping infringement allegations concrete benefits everyone in the ecosystem. That rationale is behind GitHub's amicus brief filed in SAS Institute, Inc. v. World Programming Ltd., now before a Federal Court of Appeals.

When the Claimed Infringement Isn't Literal Copying

The SAS case is the latest chapter in a decade-long dispute running through courts in both the UK and the US. SAS Institute brought claims against World Programming's software, which runs programs written in the SAS language. Observers have drawn comparisons to Google v. Oracle, but the two cases diverge on a key point.

In SAS v. World Programming, the copyright claim rests on "nonliteral" infringement. There's no assertion that specific lines of code were copied verbatim. Instead, the allegation is that broader aspects — the overall structure and organization of code — were taken. That framing raises two questions: which parts of those nonliteral features were actually used, and are those parts even protected by copyright?

On the first question, the court found SAS Institute's argument lacking. SAS "simply repeated and repeated that [the system] was 'creative'" without offering concrete examples that would let the court or the defendant isolate which pieces were at issue. The court ruled in favor of World Programming, and SAS appealed.

The Case for Early Specificity

GitHub's position is that in nonliteral copying claims, the copyright owner should be required to identify examples of the alleged copying as early as possible. This is not just a procedural nicety — it's essential for practical dispute resolution, because most infringement allegations never reach a courtroom.

Typically, these matters begin and end with a demand letter from the rights holder or a DMCA notice sent to a platform like GitHub. When the accusation is so imprecise that nobody can determine which code is in question, there's no real path to a meaningful response. A developer can't fix a problem they can't locate, and a platform can't evaluate a claim without specifics.

GitHub's brief highlights why this matters so acutely for the developer community:

  • Removing software based on vague infringement claims can have an outsized impact on the broader community that depends on the code.
  • Vague allegations can derail critical projects that many other projects rely on.
  • Without specifics, developers lose the chance to quickly fix legitimate issues or disprove misguided claims.

Getting allegations down to concrete, testable specificity early on serves efficiency. It converts fear, uncertainty, and doubt into a clear list of actions. Infringing code gets changed, and non-infringing code stays online. GitHub argues that principle should hold both in federal litigation and in the DMCA process.