[back to notice text] Question: What defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?
Answer: A service provider is defined as "an entity
offering transmission, routing, or providing connections for digital
online communications, between or among points specified by a user, of
material of the user's choosing, without modification to the content of
the material as sent or received" or "a provider of online services or
network access, or the operator of facilities thereof."
[512(k)(1)(A-B)] This broad definition includes network services
companies such as Internet service providers (ISPs), search engines,
bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc.,
the court refused to extend the safe harbor provisions to the Napster
software program and service, leaving open the question of whether
peer-to-peer networks also qualify for safe harbor protection under
Section 512. There are four major categories of network
systems offered by service providers that qualify for protection under
the safe harbor provisions:
- Conduit Communications
include the transmission and routing of information, such as an email
or Internet service provider, which store the material only temporarily
on their networks. [Sec. 512(a)]
- System Caching refers to
the temporary copies of data that are made by service providers in
providing the various services that require such copying in order to
transfer data. [Sec. 512(b)]
- Storage Systems refers to
services which allow users to store information on their networks, such
as a web hosting service or a chat room. [Sec. 512(c)]
- Information
Location Tools refer to services such as search engines, directories,
or pages of recommended web sites which provide links to the allegedly
infringing material. [Sec. 512(d)]
[back to notice text] Question: What are the DMCA Safe Harbor Provisions?
Answer: In 1998, Congress passed the On-Line Copyright
Infringement Liability Limitation Act (OCILLA) in an effort to protect
service providers on the Internet from liability for the activities of
its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA),
this new law exempts on-line service providers that meet the criteria
set forth in the safe harbor provisions from claims of copyright
infringement made against them that result from the conduct of their
customers. These safe harbor provisions are designed to shelter service
providers from the infringing activities of their customers. If a
service provider qualifies for the safe harbor exemption, only the
individual infringing customer are liable for monetary damages; the
service provider's network through which they engaged in the alleged
activities is not liable.
[back to notice text] Question: What may be copyrighted?
Answer:
In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods
of operation, concepts, principles, or discoveries: they only protect physical
representations. 17
U.S.C. § 102(b). Anything unrecorded is not copyrightable, in as
much as it is not "fixed;" for example, dances and improvisations
themselves are not copyrightable: only visual recordings or written descriptions
of them are. Say I go to a jazz concert and listen to a soloist's improvisation.
If I have the musical equivalent of a photgraphic memory, I may be able
to reproduce that improvised solo in my own concert on the following night.
If that solo exists nowhere but my memory (i.e. the original concert was
not recorded) I may play it with impunity, because it is not "fixed"
and therefore not copyrightable. But, if the original concert was recorded
(e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred
from playing my version of the solo. Even a bootleg recording (for which
the recorder can be punished under section 1101 of the copyright act) qualifies
for copyright protection: a work need not be formally published in order
to be "fixed;" it need only be saved in a tangible form. 17
U.S.C. § 104.
The originality requirement of 17
U.S.C. §102 demands that a work, in order to be copyrigted, be
independently created by the author. In order to be original, a work need
not necessarily have novelty, artistic merit, truth, or lawful content.
For example, a replica of a painting in the public domain may not be novel,
but it is copyrightable. An item of sculpture designed to be used as a pipe
for smoking marijuana may not be designed for legal ends, but it is copyrightable.
A false biography is copyrightable, although it may well also be cause for
defamation litigation.
[back to notice text] Question: What does "under penalty of perjury" mean?
Answer: Law.com offers a good definition of perjury: "Perjury is
the the crime of intentionally lying after being duly sworn (to tell
the truth) by a notary public, court clerk or other official. This
false statement may be made in testimony in court, administrative
hearings, depositions, answers to interrogatories, as well as by
signing or acknowledging a written legal document (such as affidavit,
declaration under penalty of perjury, deed, license application, tax
return) known to contain false information. Although it is a crime,
prosecutions for perjury are rare, because a defendant will argue
he/she merely made a mistake or misunderstood."
[back to notice text] Question: What are the notice and takedown procedures for web sites?
Answer: In order to have an allegedly infringing web site
removed from a service provider's network, or to have access to an
allegedly infringing website disabled, the copyright owner must provide
notice to the service provider with the following information:
- The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
- The
infringing materials and their Internet location
[512(c)(3)(A)(ii-iii)], or if the service provider is an "information
location tool" such as a search engine, the reference or link to the
infringing materials [512(d)(3)].
- Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
- A
statement by the owner that it has a good faith belief that there is no
legal basis for the use of the materials complained of
[512(c)(3)(A)(v)].
- A statement of the accuracy of the
notice and, under penalty of perjury, that the complaining party is
authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].
Once
notice is given to the service provider, or in circumstances where the
service provider discovers the infringing material itself, it is
required to expeditiously remove, or disable access to, the material.
The safe harbor provisions do not require the service provider to
notify the individual responsible for the allegedly infringing material
before it has been removed, but they do require notification after the
material is removed.
[back to notice text] Question: What are the counter-notice and put-back procedures?
Answer: In order to ensure that copyright owners do not
wrongly insist on the removal of materials that actually do not
infringe their copyrights, the safe harbor provisions require service
providers to notify the subscribers if their materials have been
removed and to provide them with an opportunity to send a written
notice to the service provider stating that the material has been
wrongly removed. [512(g)] If a subscriber provides a proper
"counter-notice" claiming that the material does not infringe
copyrights, the service provider must then promptly notify the claiming
party of the individual's objection. [512(g)(2)] If the copyright owner
does not bring a lawsuit in district court within 14 days, the service
provider is then required to restore the material to its location on
its network. [512(g)(2)(C)] A proper counter-notice must contain the following information:
- The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
- Identification of the material and its location before removal [512(g)(3)(B)]
- A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]
If
it is determined that the copyright holder misrepresented its claim
regarding the infringing material, the copyright holder then becomes
liable to the OSP for any damages that resulted from the improper
removal of the material. [512(f)]
[back to notice text] Question: What kinds of things are copyrightable?
Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium. Only
material that originated with the author can support a copyright. Items
from the public domain which appear in a work, as well as work borrowed
from others, cannot be the subject of an infringement claim. Also,
certain stock material might not be copyrightable, such as footage that
indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV. The
requirement that works be in a fixed medium leaves out certain forms of
expression, most notably choreography and oral performances such as
speeches. For instance, if I perform a Klingon death wail in a local
park, my performance is not copyrightable. However, if I film the
performance, then the film is copyrightable.
[back to notice text] Question: What is copyright protection?
Answer:
A copyright protects a literary, musical, dramatic, choreographic, pictoral
or graphic, audiovisual, or architectural work, or a sound recording, from
being reproduced without the permision of the copyright owner. 17
U.S.C. §102. The copyright in a work vests originally in the author(s)
of the work. The author(s) may transfer the copyright to any other party
if she(they) choose(s) to do so. 17
U.S.C. §201. Subject to certain limitations, the owner of a copyright
has the sole right to authorize reproduction of the work, creation of a
work derived from the work, distribution of copies of the work, or public
performance or display of the work. 17
U.S.C. §106. This right lasts for the life of the author plus seventy
years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17
U.S.C. §302.
[back to notice text] Question: Who may hold a copyright?
Answer:
A copyright ordinarily vests in the creator or creators of a work (known
as the author(s)), and is inherited as ordinary property. Copyrights are
freely transferrable as property, at the discretion of the owner. 17
U.S.C. §201(a), (d). In some cases, however, the actual creator
is not considered the author of the work for copyright purposes: if a work
is created by an employee in the regular course of her employment, it is
considered a "work for hire" and the employer, not the employee,
is considered the "author" of the work for copyright purposes.
For example, in the absence of an agreement to the contrary, a staff writer
for a newspaper does not hold the copyrights in her product, the newspaper
does. This only applies to works created in the ordinary course of employment:
if the same reporter writes a novel in her spare time, she herself owns
that copyright.
Certain commissioned works may also be considered works for hire. 17
U.S.C. §201(b); Community
for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work
for hire" is defined in 17 U.S.C. §101.
[back to notice text] Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative
work by granting a temporary monopoly in an author's original
creations. This monopoly takes the form of six rights in areas where
the author retains exclusive control. These rights are: (1) the right of reproduction (i.e., copying), (2) the right to create derivative works, (3) the right to distribution, (4) the right to performance, (5) the right to display, and (6) the digital transmission performance right. The
law of copyright protects the first two rights in both private and
public contexts, whereas an author can only restrict the last four
rights in the public sphere. Claims of infringement must show that the
defendant exercised one of these rights. For example, if I create
unauthorized videotape copies of Star Trek II: The Wrath of Khan
and distribute them to strangers on the street, then I have infringed
both the copyright holder's rights of reproduction and distribution. If
I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Trademark
law, in contrast, is designed to protect consumers from confusion as to
the source of goods (as well as to protect the trademark owner's
market). To this end, the law gives the owner of a registered trademark
the right to use the mark in commerce without confusion. If someone
introduces a trademark into the market that is likely to cause
confusion, then the newer mark infringes on the older one. The laws of
trademark infringement and dilution protect against this likelihood of
confusion. Infringement protects against confusion about the
origin of goods. The plaintiff in an infringement suit must show that
defendant's use of the mark is likely to cause such a confusion. For
instance, if I were an unscrupulous manufacturer, I might attempt to
capitalize on the fame of Star Trek by creating a line of 'Spock
Activewear.' If consumers could reasonably believe that my activewear
was produced or endorsed by the owners of the Spock trademark, then I
would be liable for infringement. The law of trademark dilution
protects against confusion concerning the character of a registered
trademark. Suppose I created a semi-automatic assault rifle and
marketed it as 'The Lt. Uhura 5000.' Even if consumers could not
reasonably believe that the Star Trek trademark holders produced this
firearm, the trademark holders could claim that my use of their mark
harmed the family-oriented character of their mark. I would be liable
for dilution.
[back to notice text] Question: What is copyright infringement? Are there any defenses?
Answer: Infringement occurs whenever someone who is not the
copyright holder (or a licensee of the copyright holder) exercises one
of the exclusive rights listed above. The
most common defense to an infringement claim is "fair use," a doctrine
that allows people to use copyrighted material without permission in
certain situations, such as quotations in a book review. To evaluate
fair use of copyrighted material, the courts consider four factors: - the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of copying, and
- the market effect.
(17 U.S.C. 107) The
most significant factor in this analysis is the fourth, effect on the
market. If a copier's use supplants demand for the original work, then
it will be very difficult for him or her to claim fair use. On the
other hand, if the use does not compete with the original, for example
because it is a parody, criticism, or news report, it is more likely to
be permitted as "fair use." Trademarks are generally subject to
fair use in two situations: First, advertisers and other speakers are
allowed to use a competitor's trademark when referring to that
competitor's product ("nominative use"). Second, the law protects "fair
comment," for instance, in parody.
[back to notice text] Question: What does a service provider have to do in order to qualify for safe harbor protection?
Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions. In
order to facilitate the notification process in cases of infringement,
ISPs which allow users to store information on their networks, such as
a web hosting service, must designate an agent that will receive the
notices from copyright owners that its network contains material which
infringes their intellectual property rights. The service provider must
then notify the Copyright Office of the agent's name and address and
make that information publicly available on its web site. [512(c)(2)] Finally,
the service provider must not have knowledge that the material or
activity is infringing or of the fact that the infringing material
exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does
discover such material before being contacted by the copyright owners,
it is instructed to remove, or disable access to, the material itself.
[512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain
any financial benefit that is attributable to the infringing material.
[512(c)(1)(B)], [512(d)(2)].
[back to notice text] Question: What is libel?
Answer: Libel is a false statement of fact expressed in a fixed
medium, usually writing but also a picture, sign, or electronic
broadcast. See What elements must be proven by a party (plaintiff...?
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