Digital Millenium Copyright Act (DMCA)

Background

INTELLECTUAL PROPERTY LAWS ARE AKIN TO LIVING ORGANISMS. Although laws are enacted to address current issues and anticipate future problems, new issues arise that no one could have anticipated. Issues like defeating electronic copy-protection on DVDs or anonymous defamatory message board postings could not have been contemplated three decades ago. In the field of the Internet and new technology, these types of issues arise much faster, necessitating a constantly evolving legal framework.

On October 28, 1998, President Bill Clinton signed the Digital Millennium Copyright Act (“DMCA“) into law to address the impact of electronic commerce on the existing legal framework. DMCA addresses issues of copyright and new technology and implements international treaties into United States law. The most important provisions of the DMCA include its prohibition on the defeat of electronic copyright protections and its insulating of internet service providers for the infringing activity of their customers.

The Act specifically states that its stipulations do not contradict or over-ride the rights, remedies, limitations, or defenses to copyright infringement, including fair use. Although the Act contains many provisions affecting broad areas of copyright on the Internet, the three principal aspects of the DMCA are (1) the limitations on liability for Internet Service Providers (ISPs); (2) the prohibition on circumventing anti-piracy software; and (3) the requirement that rebroadcasters of copyrighted material on the web pay royalties. Because the third requirement is straightforward, without many exceptions, I will discuss only the first two provisions in detail below.

Internet Service Provider Liability

Before enactment of the DMCA, ISPs were in limbo about to how to handle copyright infringement by their users. Obviously, ISPs are much easier to identify and have much deeper pockets than the average end user. ISPs, therefore, became the target of many copyright infringement suits. The Catch-22 placed upon the ISPs was that without self-policing, their services became a haven for copyright infringers.

Alternatively, if they invoked self-policing measures to weed out infringers, plaintiff’s often held them to a higher standard in infringement suits, invoking the ISP‘s actual knowledge of the infringement as evidence of willfully infringing behavior. Accordingly, Congress enacted provisions into the DMCA that shield ISPs from liability arising out of copyright infringement. To take advantage of this safe harbor shield, the ISP must:

1.	Not have previous knowledge the material is infringing; 2.	Not have facts that make it obvious the material is infringing; 3.	Remove the material “expeditiously” upon receiving a take down notice; 4.	Not receive a financial benefit from AND control the infringing activity; 5.	File their designated agent with (and pay the fee to) the US Copyright Office; 6.	Provide their designated agent contact information on their website; 7.	Implement a policy to terminate subscribers who are repeat offenders; and 8.	Accommodate technical measures designed to protect copyrighted works.

Title II of the DMCA, otherwise known as the Online Copyright Infringement Liability Limitation Act (OCILLA), contains specific procedures a copyright holder must follow to get and ISP to remove infringing uses of their work under the DMCA. As noted above, ISPs must designate an “agent” to receive “take down notices” of infringement. If a copyright owner identifies an online infringing use of its copyrighted work, the owner can send a take down notice to the designated agent of the associated ISP to have the work removed under the DMCA.

If you find your company’s copyrighted material on another website and the owner refuses to comply with your request to removal the material, the DMCA provides a streamlined process for removing the material that avoids the hassle, cost, and acrimony of litigation. An appropriate take down notice under the DMCA must include:

1.	A signature of the copyright owner or a person authorized to act on the owner’s behalf; 2.	Identification of the copyrighted works or a representative list of such works; 3.	Identification of the material that is claimed to be infringing sufficient to permit the ISP to locate the material; 4.	Contact information for the complaining party (the party providing the notification letter); 5.	A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 6.	A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed.

Hand in hand with the foregoing safe haven provisions, the DMCA provides the elimination of ISP liability for removal of allegedly infringing items in certain circumstances, regardless of whether the material or activity is ultimately determined to be infringing. If the removal is based upon a notification of infringement, as identified above, the ISP may avoid liability by:

1. taking reasonable steps to promptly notify the subscriber that it has removed or disabled access to the material; 2. upon receipt of a counter notification of non-infringement by the alleged infringer, forwarding the counter notification to the original complainant; 3. informing the complainant that the material will be replaced in 10 business days; and 4. replacing the material in ten days unless it receives notification from the original complainant that the original complainant has filed a lawsuit on the matter.

Under OCILLA, the subscriber has the option of providing a counter take down notice to the designated agent of the ISP if the subscriber feels it has a legitimate right to use the material. The counter take down notice must include:

1.	A signature of the subscriber; 2.	Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; 3.	A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and 4.	The subscriber's name, address, and telephone number in addition to a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located; or, if the subscriber's address is outside of the United States, consent to jurisdiction for any judicial district in which the service provider may be found and where the subscriber will accept service of process from the person or their agent who provided the take down notice.

Once the subscriber files a counter take down notice, the original complaining party has fourteen days to file a copyright lawsuit in federal court. If the originally complaining party does not file a lawsuit, the ISP then simply reposts the original material, and the matter is closed.

Anti-Circumvention

Under Section 1201 of the DMCA, no person shall circumvent a technological measure that effectively controls access to a copyrighted work. The 1201 provision typically relates to special software used to “crack” copyright protections on software such as DVDs and the like. The Act also prohibits trafficking in any technology product, service, device, component, or part thereof that: (1) is primarily designed to circumvent a technological measure that effectively controls access to a copyrighted work; (2) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a copyrighted work; or (3) is marketed by an entity with that entity’s knowledge for use in circumventing a technological measure that effectively controls access to a copyrighted work.

The term “traffic“, as used in the Act, is very important because courts have interpreted “traffic” to include merely linking to a website containing anti-circumvention technology if there is clear and convincing evidence that the entity: (a) knew at the relevant time the offending material was on the website; (b) knew the circumvention technology could not be lawfully offered; and (c) created or maintained the link for the purpose of disseminating circumvention technology.

While at first blush this ruling may appear to be Orwellian in its scope, the ruling requires clear and convincing proof that the entity knew that the circumvention technology could not lawfully be offered. This caveat insulates ordinary businesses from running afoul of the ruling by accidentally linking to a website that may include cracking software. Unless you are actually aware that a website you link to is designed to facilitate illegal copyright cracking, you likely have little to worry about running afoul of Section 1201 0f the DMCA.

In Universal Studios v. Reimerdes, the court found liability because the entity had previously been enjoined from directly distributing the circumvention software itself and subsequently began linking to similar sites. Indeed, the court distinguished cases where the entity did not intentionally link to sites containing the circumvention technology. Although the holding of Reimerdes may be rather narrow, if a website owner becomes aware that its website links to another website containing such circumvention software, the owner may be well advised to seriously consider linking to an alternative site that does not expose them to liability.