Protecting your interests

Digital Millennium Copyright Act of 1998- Part 1

September 13th, 2011 by Jacob

(This is not legal advise nor does it create an attorney-client relationship. This is just a blog post. It cannot address the many different issues for individual cases.)

Congress passed the Digital Millennium Copyright Act of 1998 (‘DMCA’) to try to modernize copyright law to deal with the growth of the internet and its easy access to infringing data. The DMCA has five titles including provisions implementing 1996 World Intellectual Property Organization (‘WIPO’) treaties and technologies controlling access to copyrighted material. This post will only cover Title II of the DMCA and its protections for internet service providers from copyright liability if certain procedures are followed. Title II of the DMCA is found in Section 512 of the Copyright Act.

DMCA enables internet service providers to avoid liability (‘safe harbor’) for copyright infringement. The law evolved, in large part, out of the 1995 court decision Religious Technology Center v. Netcom On-Line Communications, where the court tried to reconcile copyright law and the workings of the internet. The law covers four area of infringement: transmissions (512(a)), caching (512(b)), storage (512(c)), and location information (512(d)).

DMCA actually has two definitions of internet service provider (‘ISP’). An ISP is defined in 512(a) slightly differently than for the rest of the statute. 512(a) applies to the ISP who provides “…transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections.” For all other sections an ISP is defined much broader as “a provider of online services or network access, or the operator of facilities thereof.”

An ISP must comply with section 512(i) as a prerequisite for qualifying for any of DMCA safe harbors. 512(i) requires an ISP 1- to adopt, reasonably implement, and inform users of a policy under which it will “in appropriate circumstances” terminate service to users who are repeat infringers, and 2- ISP must accommodate standard technical measures that copyright owners use to identify or protect their works

DMCA SAFE HARBOR REQUIREMENTS

For a entity falling within the definition of ISP and meeting the requirements of 512(i) there are four possible safe harbors limiting liability for copyright infringement. These cover transitory digital communications (512(a)), temporary caching (512(b)), storage on systems requested by users (512(c)), information search (512(d)), and special provisions for nonprofit higher education institutions providing internet service (512(e)).

Digital Communications: 512(a) states,

(a) Transitory Digital Network Communications. — A service provider shall not be liable … for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if —
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients… and
(5) the material is transmitted through the system or network without modification of its content.
This safe harbor clearly is addressing the ‘passive conduit’ logic of the Netcom case where the court did not find the ISP liable for copyright infringement. As long as the ISP is merely acting as the internet pipe it should avoid liability for what may otherwise be copyright infringement such as making copies. The internet may never have blossomed if was not for such a safe harbor.

Caching: Section 512(b) states in part,

(b) System Caching.
(1) Limitation on liability. — A service provider shall not be liable … for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which —
(A) the material is made available online by a person other than the service provider;
(B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and
(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met.

Section 512(b)(2) also has 5 conditions (A) – (E) that must be satisfied. These include a prohibition against modifying the data, complying with industry standards for refreshing and reloading data, not interfering with access restriction imposed by the content provider, and must disable access if it receives proper notice of material that infringes someone’s copyright and has been removed by the content provider already.

Information Storage: Under 512(c) An ISP is not liability from the storage (at users direction) of data if the following are satisfied:

- the ISP did not have actual knowledge and if knowledge of such material is known the ISP must promptly remove the data.
- if the ISP has the ability to control the infringing material the ISP must not receive any direct financial benefit
- if a proper notice (see notice requirements below) of infringing material is received the ISP must promptly remove access to the data
- the ISP must list on its website the contact information of the person designated to receive 512 notices and register the same with the Copyright Office for its public directory.

Probably the most litigated ‘safe harbor’ is the first requiring a lack of knowledge and a prompt take-down of the infringing material upon notice. Courts have strictly read 512(c) making it hard for plaintiffs to hold ISP’s liable for copyright infringement. The growth of peer-to-peer networks and other file sharing systems often become targets of 512(c) litigation when they are really operating to distribute copyright protected material such as movies and computer programs. Such sites often do not respond to 512 notices. However, courts have been reluctant to find knowledge from circumstantial facts, even where it seems clear the websites functions to distribute copyright protected material. In a major case between Viacom and Youtube, Viacom tried to argue YouTube was liable for infringing material without receiving a 512 notice because YouTube was “aware of facts or circumstances” around the infringing material. The court however held that the statute required knowledge of “facts or circumstances” of specific infringing material and the fact that infringement is “ubiquitous” does not satisfy the standard.

Information Location Tools: Under 512(d) ISP are not liable because of linking, indexing or referring to another website containing infringing material. The safe-harbor requires that the ISP 1- must not have actual knowledge and if discovered must promptly remove the material, 2- if the ISP has the ability to control the infringing activity, the ISP must not receive any direct financial benefit, 3- upon receiving notice of infringement must promptly remove the data.

It is rare that an ISP will take an active role in policing copyright infringers. An ISP would rather stay safely in the safe harbors and only when confronted with actual knowledge of specific material infringing a copyright will it be forced to act. This places the burden on the copyright holder to do its own investigations and notify ISP of infringing material. This is done by sending the ISP a 512(c) take down notice.

512 TAKE DOWN NOTICE

A proper notice of infringement under Section 512 must meet the requirements of 512(c)(3). 512(c)(3) states,

(3) Elements of notification. —
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) 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.
(vi) 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 an exclusive right that is allegedly infringed.

The notice does not need to be overly complex or in a particular format but make sure all the elements are included. The notice can become complicated because you may need to list many file locations and must specify each page where the infringing material is located. Therefore, for example, if the same infringing image is used on multiple locations each page must be identified. Also, keep in mind this is a U.S. law and many website profiting from copyright infringement are based outside the U.S.

A notice that does not meet these requirements will not be considered giving actual notice to the ISP. However if the notice does clearly identify the data the ISP must contact the notifying party assist them in creating a compliant notice. If the ISP fails to contact the notifying party the notice will be considered proper for the 512(c) take-down requirement.

Finally, even if an ISP is not protected by 512 it does not automatically become liable. A plaintiff must still prove infringement just like any other copyright infringement case. (512(l)) The ISP must also give the user notice and opportunity to rebut the alleged infringement 512(g) and the notifying party can be liable for knowingly misrepresenting the infringement claims. (512(f))

In the next post I will go deeper into the DMCA, ISP liability and take-down notices.