Copying Web Site Content May Be Copyright Infringment: DMCA Take-Down Notices and other Relief

» Sabotaging Websites - A New Way To Do It : Domain Bits

There are many ways to sabotage a website, but today I found out that one of my websites was sabotaged in a way that I had never seen before.

A few months ago, I started a new, content-rich website. It included about 100 articles. Like I often do with a new website, I got a few backlinks to the site, then left it to age a few months before seriously promoting it.

Today I returned to that website to find it had some serious ranking and indexing problems in Google. I tried to figure out what was going on and found that someone had used a very creative way of sabotaging the website.

What this person had done was take almost every single article from my website, and submitted them to many article directories. However, the articles were submitted with his byline and with a link to his websites! Since then, many other websites had syndicated these articles from the article banks - and all of these syndicated articles were linking to his websites.

Oregon Asserts Copyright Protection for State Statutes

Imagine a world where state laws could not be reproduced on-line, where discussion of such laws raised possible copyright issues and where license fees had to be paid to re-publish statutes...

Info/Law » Can States Copyright Their Statutes?

Via Boing Boing comes a story about the State of Oregon asserting copyright over its official codification of state laws, the Oregon Revised Statutes. The state’s Office of Legislative Counsel has been sending out C&Ds to groups like Justia and public.resource.org, demanding that they take down their copies of the state laws. The groups are responding with letters of their own
arguing that the statutes are in the public domain as a matter of
federal copyright law and that Oregon state law allows them to be
freely reproduced. My analysis after the break.

Although Section 105
of the Copyright Act places the works of federal government employees
(so, federal statutes, federal judicial opinions, and the like) in the
public domain, Section 105 doesn’t apply to state laws. Does that mean
state laws are copyrightable? Although the statute is silent, the
courts have always said: no, they aren’t. In Nash v. Lathrop,
6 N.E. 559, 560 (Mass. 1886), the court rested this conclusion on the
unfairness of limiting public’s access to the rules that governed its
conduct:

Technorati Tags: copyright, oregon, Boing Boing

Michigan Governor Granholm Signs Film Incentive Package: Tax Breaks For Films Made In Michigan

April 7, 2008 -- LANSING - Michigan Governor Jennifer M. Granholm today signed into law legislation designed to grow the film industry in Michigan, setting the stage for hundreds of millions of dollars in private investment that will create jobs in the state. The legislation was proposed by the governor in her State of the State address and is part of an overall economic stimulus plan to grow Michigan's economy and create jobs.

"We're going to grow this industry and in the process, grow our economy and create jobs," Granholm said. "Across the country and around the world, the film industry is a multi-billion dollar industry. We're going to bring some of that investment to Michigan."

Granholm said Michigan's film incentive program is now the most aggressive in the nation. Not only is it designed to increase the number of productions filmed on location in Michigan, it is designed to attract production facilities, grow industry activities that support film production, create jobs, and train workers for those jobs.

Continue reading "Michigan Governor Granholm Signs Film Incentive Package: Tax Breaks For Films Made In Michigan"

Right To Privacy: Invasion of Privacy -- Misappropriation For Commercial use

The common-law right of privacy is said to protect against four types of invasion of privacy:

    (1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

    (2) public disclosure of embarrassing private facts about the plaintiff;

    (3) publicity that places the plaintiff in a false light in the public eye; and

    (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. [Ruffin-Steinback v. dePasse, 82 F.Supp.2d 723, 728 (E.D.Mich.2000), aff'd 267 F.3d 457 (6th Cir. 2001)]

In an influential article, Dean Prosser delineated four distinct types of the right of privacy: (1) intrusion upon one's seclusion or solitude, (2) public disclosure of embarrassing private facts, (3) publicity which places one in a false light, and (4) appropriation of one's name or  likeness for the defendant's advantage. Prosser, Privacy, 48 Calif.L.Rev. 383, 389 (1960). This fourth type has become known as the "right of publicity." Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 220 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979); see Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 572, 53 L. Ed. 2d 965, 97 S. Ct. 2849 (1977). Henceforth we will refer to Prosser's last, or fourth, category as the "right of publicity." Ruffin-Steinback, 82 F.Supp.2d at 728-729 (citing Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 834 (6th Cir. 1983)).

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Continue reading "Right To Privacy: Invasion of Privacy -- Misappropriation For Commercial use"

Court Dismisses Case Brought By Wal-Mart Against Gripe Site Defendant: Case Likely Drives More Internet Traffic To The Gripe Site.

Thanks to Eric Goldman at the Technology & Marketing Law Blog for posting the recent Grip Site & Trademark Infringement Decision in Smith v. Wal-Mart Stores, Inc., 2008 WL 760196 (N.D. Ga. March 20, 2008).  As Mr. Goldman points out, there are lots of lessons to be learned here for companies seeking to shut down unfavorable commentary by gripe site authors (and third parties such as CafePress which hosted the merchant account  but did not get sued after it modified its level of involvement in selling the disputed goods).

The action arose from the contention of Defendant Wal-Mart Stores that its registered trademarks "WALMART"; "WAL-MART"; and "WALiMART"; its registered word mark "ALWAYS LOW PRICES. ALWAYS"; and its "well-known smiley face mark" were infringed by Plaintiff Charles Smith's anti-Wal-Mart merchandise. This merchandise included t-shirts and other items with a variety of anti-Walmart designs and slogans, including the phrases "Walocaust" and "Wal-Qaeda."  Smith petitioned the Court to declare his activities legal, including his domain registration of www.walocaust.com, www.wal-qaeda.com and and www.walqaeda.com so that he could resume them without fear of incurring liability for damages; Wal-Mart counterclaimed for an award of ownership of Smith's Wal-Mart-related domain names, an injunction precluding Smith from making commercial use of any designation beginning with the prefix "WAL," and an award of nominal damages. Both parties requested costs and attorneys' fees.  The Court granted Smith's Motion for Summary Judgment as parody and non-commercial speech. 

Continue reading "Court Dismisses Case Brought By Wal-Mart Against Gripe Site Defendant: Case Likely Drives More Internet Traffic To The Gripe Site."

Want to Censor Third-Party Content? Target the Registrar or Web Host.

E-Commerce News: Controversies: Domain Name Registrars: The Weakest Link in Online Free Speech

Protesters have learned to target domain name registrars instead of the actual publishers of offending content, because those usually anonymous Internet players will fold like a tent in the face of an impending storm.

"It is an interesting new strategy that is being used more and more," Naughton said. ....

To some people who regularly do business with domain name registrars, the only thing surprising about [Registrar's] response was how long it held out against the ... legal onslaught.

Hosting censorship can occur for just about any mundane reason -- never mind banking business practices and differences in religious opinions.

"All it takes is the threat of a lawsuit or even just a 'legal' looking document sent to the domain registrar,"....

Technorati Tags: first amendment, free speech

No Copyright Violation For John Q Screenplay

Summary Judgment of No Substantial Similarity : Chicago IP Litigation Blog

Tillman v. New Line Cinema Corp., No. 05 C 910, Slip Op. (N.D. Ill. Mar. 7, 2008).*

Judge Kennelly dismissed plaintiff’s copyright infringement claims holding that: (1) defendants’ allegedly infringing movie, “John Q,” was created before plaintiff’s copyrighted screenplay; (2) defendants did not have access to plaintiff’s screenplay when John Q was created; and (3) John Q was not substantially similar to plaintiff’s screenplay.

Plaintiff wrote his screenplay in 1998. But defendants produced news articles and affidavits supporting the fact that their screenplay was written in 1993, including documents proving the John Q screenplay was registered with the Writers’ Guild in 1993. Plaintiff argued that defendants’ evidence was fabricated, but submitted no substantive evidence of fabrication.

Technorati Tags: john q, copyright, substantially similar

Permission First Avoids DMCA Take Down Notice Or Copyright Threat Letter

Always get permission before using images or pictures taken by someone else. Pictures taken by someone else are copyright protected and subject to the Digital Millennium Copyright Act (DMCA).

Elliot’s Blog » Blog Archive » Get Permission First

Long story short, I contacted the local operations manager for one of the hotels, asking if I could use the photographs from the parent company’s website. He said it would be ok, and I should send him an email to confirm. I noticed the domain name in his email address was the franchise company that owns this hotel and two others in the city, so I decided to call them and ask for a blanket permission. I talked to a web manager, who without giving it a second thought, said I could absolutely not use the photographs from the chain’s website as it is against company policy.

I explained my initial plans for the site and that they would bear no costs, and he said he would take it higher up the chain, but for now, I can’t use the photographs. I could have very easily used the pictures and pleaded ignorance, but with an expensive geographic domain name like the one I own, I opted to ask first. Experience tells me that it’s a smart move, as the manager at a hotel in Lowell told me the exact same thing when I began developing Lowell.com. I am still awaiting approval on those images.

Technorati Tags: dmca, copyright, take down

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World's Dumbest File Sharer Loses Case and Lawyer

As noted in The Register, the Thomas case surely marked a low point for both sides in the P2P wars. Now, Jammie Thomas has been fired by her own attorney who admittedly had no copyright or Digital Millennium Copyright experience.  The lawyer for Ms. Thomas apparently encouraged her to take the case to trial on principle, turning a likely $2,000 settlement into a $222,000 judgment against her.

World's Dumbest File Sharer loses lawyer, sells knickers | The Register

Things are looking up for the World's Dumbest File Sharer, Jammie Thomas, who became the first American to go to court in a P2P case in October A jury of her peers found Thomas guilty of copyright infringement and set a fine of $222,000 - but now she's been dumped by the person most responsible for leaving her in this predicament (apart from Jammie herself) - her attorney Brian Toder. Click here to find out more! It was Toder who foolishly advised her to make a principled fight of the matter in court - thereby turning what would have been a $2,000 tax into a candidate for bankruptcy. And it was the sheer ineptness of Toder's defence strategy that led the jury to conclude she was taking the piss. (The no nonsense, blue collar jury resented having their time wasted, they later revealed).

Technorati Tags: dmca, riaa, copyright

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Capital v Thomas DMCA Litigation: Damage Award Contested

Statutory damages are a huge weapon under the DMCA for copyright infringement, as well as other federal intellectual property states such as the ACPA for domain name cybersquatting.

DoJ says $222,000 damages in Capitol v. Thomas trial not unconstitutional

The US government has weighed in on the constitutionality of the $222,000 damage award in Capitol v. Thomas with a brief filed yesterday. The government suggests that the court avoid ruling on the constitutionality of the statutory damages clause of the Copyright Act. Should the court feel the need to rule on the constitutionality, it should find that the damages award does not violate the Due Process Clause of the Constitution. After a three-day trial, single mother Jammie Thomas was found to have willfully infringed on the record label's copyrights. The jury awarded the RIAA statutory damages of $9,250 per song, for a total of $222,000, out of a maximum of $150,000 per track.

Statutory damages were requested by the RIAA because true damages would be difficult to calculate.  However, it is likely that the statutory damages  exceed actual damages despite the fact that other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement. The issue of whether making a file available for download on a P2P network constitutes distribution is likely to be hotly contested on appeal. This was a contentious issue during the  trial, with the court ultimately ruling that making files available for download constituted distribution.  The case is currently on appeal.

Technorati Tags: DMCA, RIAA, copyright

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Enforcing Your Copyright Under DMCA

1. Contact the website owner;
2. Send a Take-Down Notice to the Online Service Provider (“OSP”);
3. Send a Take-Down Notice to the Company that Registers the URL;
4. Send a Take-Down Notice to the Search Engines.

SEOmoz | Four Ways to Enforce Your Copyright: What to Do When Your Online Content Is Being Stolen

There are four ways to stop someone from stealing your content. Before we dive into each of those methods, I want to preemptively address some caveats, complicating factors, and limitations of the "four methods" approach.    1. Make sure the website is actually unlawfully infringing your copyright and not making "fair use" of your content. You won't make any friends if you're throwing around unfounded nastygrams and issuing unwarranted DMCA take-down notices. The people at Chillingeffects.org will certainly not be pleased. Also, there is a possibility that you could be forced to pay attorneys' fees and costs to the website if you send an improper DMCA Take-Down Notice.   2. Many of the steps below are designed to take advantage of the U.S.'s Digital Millennium Copyright Act ("DMCA"). Because this law is only enforceable within the U.S., some of the steps below will not be effective outside of the U.S.   3. The effectiveness of the steps below also depends heavily on the accuracy of WhoIs information. Unfortunately, bad actors sometimes do not use accurate contact information to register their domains. Thus, some of the steps below will not be possible.

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Does DMCA Cover Attempted Distribution and Copyright Infringement?

On Friday, EFF filed an amicus brief in Atlantic v. Howell, an Arizona lawsuit brought as part of the RIAA's national campaign against individuals for file-sharing. Although the case has received attention recently over the issue of whether CD ripping is legal, the main event in the case is about something different: can the RIAA sue people for attempted copyright infringement?

EFF Files Brief in Atlantic v. Howell Resisting RIAA's "Attempted Distribution" Theory | Privacy Digest

As in more than 20,000 other lawsuits, the recording industry claims that Mr. and Mrs. Howell committed copyright infringement by using P2P file sharing software (in this case, Kazaa). But rather than going to the trouble of proving that the Howells made any infringing copies (by ripping CDs or downloading songs) or any infringing distributions (by uploading to other Kazaa users), the record labels argue that simply having a song in a shared folder, even if no one ever downloaded it from you (i.e., "making available"), infringes the distribution right. This essentially amounts to suing someone for attempted distribution, something the Copyright Act has never recognized (although the DoJ unsuccessfully tried to get something like that from Congress last year).  The RIAA's position is troubling not just because it would set a dangerous precedent, but because it has already been rejected by several courts after pitched battles between big copyright owners and big defendants. For example, when the RIAA tried this maneuver against Bertelsmann in the Napster case, they were shut down . When the entertainment industry tried it against Google in the Perfect 10 case, they were shut down.

Technorati Tags: dmca, copyright, riaa

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Digital Millennium Copyright Act Lawyers

Your copyrights can be valuable property to your company or business.

There are dozens of ways that third parties can steal your copyrighted materials without your permission or knowledge. Our lawyers get calls and emails every day from companies who have copyrighted material posted unlawfully across the internet. We also represent web hsoting and web site development companies whose services allow users to upload materials to their servers, ensuring compliance with the take down provisions of the DMCA.

If you don't protect your copyrights, who will? Contact a DMCA lawyer for a free consultation. 

Use Of “Thumbnail” Images Of Copyrighted Works In Search Results May Be Contributory Infringement

In Perfect 10, Inc. v. Amazon.com, Inc., et al., No. 06-55405 (9th Cir., May 16, 2007). The Ninth Circuit holds that Google’s creation and display in search results of lower resolution ‘thumbnail’ copies of infringing images found on third party websites for the purpose of aiding the public in locating such images is a fair use that does not infringe the rights of the holder of the copyright therein.  In reaching this result, the court relied largely on the transformative nature of the thumbnails Google created, which, by facilitating the public’s ability to search the web for images, serve a different purpose than the original images, which are designed to entertain. 

Applying the “server test”, the Ninth Circuit further held that framing infringing images found on third party web sites via “in-line linking” to such sites does not directly infringe the display or distribution rights of the holder of the copyrights in such images.

Reversing the District Court, the Ninth Circuit held, however, that Google is potentially liable on a theory of contributory infringement for infringing plaintiff’s copyrights as a result of its provision of in-line links to third party websites carrying infringing content. Contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy. According to the Court, “Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.”  Issues of fact mandated denial of plaintiff’s motion for summary judgment.  Left for the District Court to resolve on remand was whether the Digital Millennium Copyright Act (“DMCA”) immunized Google from liability for such contributory infringement.

Finally, the Ninth Circuit held that Perfect 10 was unlikely to prevail on vicarious infringement claims arising out of Google’s provision of in-line links to third party web sites that contained infringing images. Vicarious liability or vicarious infringement, a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, liability may be found even if there is no specific knowledge of infringing acts occurring on  a site.The Court held that Perfect 10 had not demonstrated that Google had the ability to control such third party websites, and compel them to remove infringing images found on their sites, a prerequisite to a finding of vicarious infringement.

Ninth Circuit Addresses “Reasonable Implementation” And Other Elements Of The Digital Millennium Copyright Act

In Perfect 10, Inc. v. CCBill LLC and Cavecreek Wholesale Internet Exchange d/b/a CWIE LLC, No. 04-57143 (9th Cir., March 29, 2007) the Ninth Circuit allowed Perfect 10 to pursue copyright infringement claims against defendants, who provide web hosting and credit card billing services, arising out of the unauthorized posting on the web by their third party customers of “adult” images in which Perfect 10 holds copyrights. Questions of fact precluded a determination of whether defendants were immunized from monetary liability for such claims by the Digital Millennium Copyright Act (“DMCA”). The Court of Appeals held such immunity extends only to service providers who “reasonably implement” a policy for terminating those of their customers that repeatedly infringe copyrights. In considering this question, the Ninth Circuit held courts should consider not only the manner in which the defendants responded to “take down” infringement notices sent by the plaintiff copyright holder, here Perfect 10, but also the manner in which they responded to similar notices from third party copyright holders.  It is evident Courts will consider not only policies concerning take down of infringing content but actual implementation of those policies under the safe harbor provisions of the DMCA.

The Ninth Circuit further held that defendants had no obligation to respond to the “take down” notices provided by Perfect 10, or take steps to prevent the infringing conduct alleged therein, due to Perfect 10’s failure to provide such notices under penalty of perjury. Nor, held the Ninth Circuit, were defendants obligated to take action against purported “red flag” sites defendants serviced. The DMCA does not impose on service providers the obligation to conduct an affirmative investigation into the bona fides of such sites. To qualify as a “red flag” site that imposes an obligation on a service provider to act, held the Ninth Circuit “it … need[s] to be apparent that the website instructed or enabled users to infringe another’s copyright.”

Handling a DMCA Takedown Notice

Jaffe Juice is another one of the many who has been forced to deal with a bogus DMCA takedown notice. For anyone out there who could potentially receive a takedown notice, bloggers and others hosting web content, it is a good idea to brush up on what your course of action is should you receive one of these notices. Take a look here to see how Jaffe handled the problem.

What sets Jaffe apart from some of the rest of those who have received takedown notices is that instead of blindly complying with the notice as many ISPs have been doing, he very easily gets to the bottom of the situation by contacting the copyright holder of the material and finds that there is no copyright infringement taking place. It is a good idea for anyone threatened by a DMCA takedown notice to follow Jaffe's example by first verifying that the notice is a valid one.

Continue reading "Handling a DMCA Takedown Notice"

Digital Millennium Lawsuit Against Universal Music Publishing

Interview with Marcia Hoffman, a staff attorney for the Electronic Frontier Foundation (EFF) www.eff.org. Ms. Hoffman is the lead attorney representing YouTube contributor, Stephanie Lenz, against Universal Music Publishing Group. Universal Music recently shut down Ms. Lenz' YouTube video of her toddler son dancing to a Prince song on the internet with a bogus take down notice to YouTube.

• Watch the video here.
• See the Lenz v. Universal Music Publishing Group Complaint here.
• More Info on the EFF here.

with Expert Marcia Hoffman of EFF.ORG Sponsor TraverseLegal.com Read Transcript Play Show

ANNOUNCER: Welcome to the VTalk Radio Tech Spotlight with your host, John Bentley.

JOHN: Welcome to VTalk Radio's Tech Spotlight. This is your host, John Bentley. Today we are speaking with Ms. Marcia Hoffman. Marcia is a staff attorney for the Electronic Frontier Foundation, known affectionately in the internet community as EFF and found at www.eff.org. Ms. Hoffman is the lead attorney representing You Tube contributor, Stephanie Lenz, against Universal Music Publishing Group. Universal Music recently shut down Ms. Lenz' You Tube video of her toddler son dancing to a Prince song on the internet with a bogus take down notice to You Tube. Marcia welcome to the program.

MARCIA: Hi there. Thanks for having me on.

JOHN: First of all, can you tell us what is the Electronic Frontier Foundation?

MARCIA: The Electronic Frontier Foundation is a civil liberties organization based in San Francisco which that champion digital rights, most particularly individual rights online including things like online free speech and privacy, but also in this case, we endorse people's to use copyrighted material in a non-infringing way online.

Continue reading "Digital Millennium Lawsuit Against Universal Music Publishing"

FAIR USE Act 07 Alters DMCA's Stance

    It is widely held that the DMCA needs revisions; from abusing takedown notices to false assertions of copyright ownership the DMCA has more than its fair share of balancing issues. The new changes brought on by the passing of the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act), in February of 07 has made some progress in addressing these problems with the DMCA.

1.    "Making a compilation of portions of audiovisual works for educational use in a classroom. (While the Librarian's latest rulemaking included a similar exemption, that exemption is limited to film scholars.)
2.    Skipping commercials or "personally objectionable content" in an audiovisual work.
3.    Transmitting a work "over a home or personal network," but only to the extent that the circumvention does not interfere with DRM restrictions that prevent the uploading of the protected content to the Internet. (Thus, this exemption could not be used as a loophole to bypass the proposed broadcast flag content protection system.)
4.    Gaining access to public domain works contained within a compilation "consisting primarily of works in the public domain."
5.    Gaining access to works of "substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research."
6.    Enabling a library or archive to preserve a copy or replace a copy that is lost or stolen." (Text from http://pblog.bna.com/techlaw/2007/02/fair_use_act_of.html)

    Michael Warnecke over at the E-Commerce and Tech Law Blog discusses the impact that the FAIR USE Act has on the DMCA and specifically the exemptions provided under the Act for fair use of copyrighted material. He points out that the major impact that the FAIR USE Act has upon the DMCA is the fact that there is no longer an exemption for the use of copyrighted material in making backup copies. This change affects the DMCA most profoundly because the removal of this exemption means that the act of backing up archiving copyrighted material for later use is now a copyright infringing act, punishable by law. Michael also makes the observation that “skipping commercials or ‘personally objectionable content’ in an audiovisual work does not authorize consumers to make backup DVDs for archival or any other purpose.” What this means is that the main loophole that consumers have used to copy DVDs or Audio CDs is now closed, unless of course you plan on creating a copy only in order to skip objectionable content and then destroy the copy afterwards.

DMCA has Compliance Issues

Over at Life On the Wicked Stage they've noted that the Media Rights Technologies, MRT, has filed cease and desist orders under the DMCA against four companies; Apple, Microsoft, Real, and Adobe. MRT filed the order because these companies have avoided using MRT technologies in their products, somewhat effectively circumventing the DMCA.

"MRT asserts Apple, Microsoft, Real and Adobe have produced billions of these products without regard for the DMCA or the rights of American Intellectual Property owners, actively avoiding the use of MRT's technologies. Failure to comply with this demand could result in a federal court injunction to any of the above named parties to cease production or sale of their products and/or the imposition of statutory damages of at least $200 to $2500 for each product distributed or sold.

"Together these four companies are responsible for 98 percent of the media players in the marketplace; CNN, NPR, Clear Channel, MySpace Yahoo and YouTube all use these infringing devices to distribute copyrighted works," states MRT CEO Hank Risan. "We will hold the responsible parties accountable. The time of suing John Doe is over." (Text from PRNewswire)

The threat seems to be a bid by MRT in a different direction, attacking the producers rather than the companies that rely on these products for copyright infringement. This threat will likely go nowhere, however it could signal a shift in the way the copyright war is being played out.

Companies Use DMCA to Shut Down Websites

One of the major powers that the DMCA provides to companies, as noted by Greg over at Consumer Law & Policy Blog, is an "easy way for companies to get information taken off the Internet." The way that companies accomplish this is by filing a notice of claimed infringement with the DMCA. The DMCA in turn notifies the ISP with a takedown notice and the ISP usually removes the content or shuts down whole sites which were claimed to be copyright infringing.

Where it gets tricky is that in many cases the 'infringing content' is not actually violating any aspects of the DMCA, but it is typically in the ISPs interest to shut down sites with potentially infringing content in order to avoid a lawsuit.

The other side can be seen here in the case of Diebold Election Systems. In this case the court ordered Diebold to pay court fees and damages to two students and a nonprofit ISP after it was found that Diebold had misused the DMCA in ordering takedown threats when the copyright holder knows that infringement hasn't occurred.

Digital Millennium Copyright Act, Overview

Digital Millennium Copyright Act of 1998

The DMCA is a synthesis of two WIPO (World Intellectual Property Organization) treaties. The two treaties are the WIPO Copyrights Treaty, and the Performances and Phonograms Treaty. The DMCA, very broadly, provides a standard for determining what is a copyright infringement and further mandates a system of civil remedies and criminal penalties if a violation has occurred. The two treaties that the DMCA is based off of also dealt with protection of intellectual properties from other countries that were members of the treaties. This theme is furthered in the DMCA as it provides rules for protection of works from other countries.

There are a number of exceptions under the DMCA that prevent its universal application. Among the exceptions listed under the act are; special treatment for minors, special access for nonprofit libraries, archive and educational institutions if this special access is being used in good faith for determining if they wish to obtain authorized access to a work, reverse engineering by a person who has lawfully obtained a copy of a computer program with the intent of analyzing elements for use in making the program able to operate with other programs, if these acts are permitted under the copyright law, encryption research, circumventing for personal privacy, and security testing.

Digital Millennium Copyright Act, Base Provisions

Digital Millennium Copyright Act, Base Provisions

DMCA Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act has two major portions, one of which includes works covered by several treaties in US copy prevention laws and gave the title its name and the other which is often known as the DMCA anti-circumvention provisions. The latter changed the remedies for the circumvention of copy prevention systems and required that all analog video recorders have support for a specific form of copy prevention commonly known as Macrovision built in. However, section 1201(c) of the title clarified that the title does not change the underlying substantive copyright infringement rights, remedies, or defenses. The title contains other limitations and exemptions, including for research and reverse engineering in specified situations. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

DMCA Title II: Online Copyright Infringement Liability Limitation Act

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA") creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if they restore the material upon notice from such users claiming that the material in question is not, in fact, infringing. OCILLA also provides for subpoenas to OSPs to provide their users' identity.

DMCA Title III: Computer Maintenance Competition Assurance Act

DMCA Title III modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer.

MCA Title IV: Miscellaneous Provisions

DMCA Title IV contains an assortment of provisions:
·    Clarified and added to the duties of the Copyright Office.
·    Added ephemeral copy for broadcasters provisions, including certain statutory licenses.
·    Added provisions to facilitate distance education.
·    Added provisions to assist libraries with keeping copies of sound recordings.
·    Added provisions relating to collective bargaining and the transfer of movie rights.
DMCA Title V: Vessel Hull Design Protection Act
DMCA Title V added sections 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs are not covered under copyright law, because they are useful articles whose form cannot be cleanly separated from their function.

Exemptions
In addition to the safe harbors and exemptions the statute explicitly provides, 17 U.S.C. 1201(a)(1) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make noninfringing uses of copyrighted works.

The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle. Consequently, the exemptions issued in the prior rulemakings, in 2000 and 2003, are no longer valid.
The current administratively-created exemptions, issued in November 2006, are:

·    Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors. (A new exemption in 2006.)

·    Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. (A renewed exemption, first approved in 2003.)

·    Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. (Revised from a similar exemption approved in 2003.)

·    Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. (Revised from a similar exemption approved in 2003.)

·    Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network. (A new exemption in 2006.)

·    Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities. (A new exemption in 2006.)

The Copyright Office approved two exemptions in 2000 and four in 2003. In 2000, the Office exempted (a) "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and (b) "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness." (revised and limited in 2003 and again in 2006). In 2003, the 2000 "literary works including computer programs" exemption was limited to "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete." 2003 also added an ebook exemption for text readers and an obsolete software and video game format exemptions, both of which were renewed in 2006. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006. (Source Wikipedia)

Digital Millennium Copyright Act (DMCA) Basics

The Digital Millennium Copyright Act (DMCA) is a United States copyright law which implements two 1996 WIPO treaties. It criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (commonly known as DRM) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also heightens the penalties for copyright infringement on the Internet. Passed on October 8, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended title 17 of the U.S. Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users. On May 22, 2001, the European Union passed the EU Copyright Directive or EUCD, similar in many ways to the DMCA. (Source Wikipedia)