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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- Contact the website owner;
- Send a Take-Down Notice to the Online Service Provider (“OSP”);
- Send a Take-Down Notice to the Company that Registers the URL;
- 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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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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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.
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.
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.”
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.
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" »
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.
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.
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 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
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)
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