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 Chilling Effects Clearinghouse > Anticircumvention (DMCA) > Notices > Apple complains of decrypted code, links for OS for x86 (NoticeID 3235, Printer-friendly version

Apple complains of decrypted code, links for OS for x86

February 16, 2006


Sender Information:
Apple Computer, Inc.
Sent by: [Private]
Fenwick & West LLP
San Francisco, CA, 94111, US

Recipient Information:
[Private], ISP host to
The In
Dallas, Texas, 75207, USA

Sent via: email
Re: Illegal Materials Posted on and Linked-to From Win2osx Site Hosted by The

Dear [private]:

We represent Apple Computer, Inc. ("Apple"), which owns the copyrights in the Mac OS X operating system software. It has come to our attention that a web site hosted by The, (the "Win2osx Site"), contains material that infringes Apple's copyrights and contains links to other material that infringes Apple's copyrights. In addition, the material is illegal under the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). The details are as follows:

Infringing Materials Posted the Win2osx Site. The Win2osx Site contains decrypted versions of encryption-protected files that Apple distributes with Mac OS X ver. 10.4.4. The decrypted binary code (the "Decrypted Code") may be found at the following URLs on the Win2osx Site:

Apple protects these copyrighted files with an encryption key specific to a single end-user purchaser. Any unauthorized use of these files is strictly prohibited. The foregoing decrypted files on the Win2osx Site infringe Apple's copyrights.

Infringing Materials Linked To From the Win2osx Site. In addition, the Win2osx Site contains one or more links to (the "Maxxuss Patches"), at which may be found links to "patched" versions of the Mac OS X ver. 10.4.4 operating system that have been designed to run on non-Apple hardware. These "patched" files overwhelming contain copied code from Apple's copyrighted operating system and are therefore infringing since such copying and modification has not been authorized by Apple. Links to the Maxxuss Patches may be found on the Osx86project Site, for example, at (the "Maxxuss Thread").

DMCA Anti-Circumvention Violations. Apple uses encryption and other technological measures in Mac OS X ver. 10.4.4 to effectively control access to its copyrighted operating system code and to effectively protect its rights as a copyright owner in that code. The foregoing materials posted on the Win2osx Site and linked to from the Win2osx Site are primarily designed and produced for the purpose of circumventing these technological measures. Accordingly, providing or offering them to the public through the Osx86project Site constitutes a violation of the anti-circumvention provisions of the DMCA at 17 U.S.C.


FAQ: Questions and Answers

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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:

  1. the purpose and character of the use
  2. the nature of the copyrighted work
  3. the amount and substantiality of copying, and
  4. 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.

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Question: What is a hyperlink?

Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link

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Question: If a hyperlink is just a location pointer, how can it be illegal?

Answer: It probably isn't, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:

  • In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its "function," even if the link was also speech.
  • In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work's copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)
By contrast, the court in Ticketmaster v. found that links were not infringements of copyright.

Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.

Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.

In most cases, however, simple linking is unlikely to violate the law.

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Question: What are the DMCA's anti-circumvention provisions?

Answer: The Digital Millennium Copyright Act (DMCA) is the latest amendment to copyright law, which introduced a new category of copyright violations that prohibit the "circumvention" of technical locks and controls on the use of digital content and products. These anti-circumvention provisions put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works.

The DMCA contains four main provisions:

  1. a prohibition on circumventing access controls [1201(a)(1)(A)];
  2. an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)];
  3. a copyright protection circumvention device ban [1201(b)]; and,
  4. a prohibition on the removal of copyright management information (CMI) [1202(b)].

The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities.

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Question: So what is all the controversy about the DMCA?

Answer: The shift towards the distribution of copyrighted materials in digital form has been accompanied by new methods of protection. Through the use of "digital locks," technological systems behind which these copyrighted materials are protected, producers and manufacturers are able to automate fine grained control over who can access, use, and/or copy their works and under what conditions. Producers insist these "digital locks" are necessary to protect their materials from being pirated or misappropriated. But, these new technological systems, and the DMCA provisions making it a crime to bypass them, undermine individuals ability to make "fair use" of digital information, and essentially replace the negotiation of the terms of use for those products with unilateral terms dictated by copyright owners. These self-help technical protection mechanisms are generally not evident to the purchaser or user until after the sale. In some cases, producers who use these technical locks to enforce limits on access and use of their works fail to disclose the terms of use to the purchasers or licensees of their products.

The defenses and exemptions to the circumvention prohibition and circumvention device bans included in the law are fatefully narrow. As a result, the legitimate activities of scientists, software engineers, journalists, and others have been chilled. The DMCA has been used by copyright holders and the government to prevent the creation of third-party software products, silence computer scientists, and prosecute journalists who provide hypertext links to software code.

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Question: Why was the DMCA passed?

Answer: The stated purpose of the DMCA is to ensure the protection of copyright works in the digital world by fortifying the technological blocks on access and copying of those works within a legal framework. This amendment to title 17 (the Copyright Act) was signed into law on October 28, 1998 as the United States implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty adopted by countries around the world two years earlier. The DMCA implemented these recommendations in a much stricter fashion than required, giving copyright owners broader protection than was intended in the international treaty.

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Question: What is reverse engineering?

Answer: Reverse engineering is the general process of analyzing a technology specifically to ascertain how it was designed or how it operates. This kind of inquiry engages individuals in a constructive learning process about the operation of systems and products. Reverse engineering as a method is not confined to any particular purpose, but is often an important part of the scientific method and technological development. The process of taking something apart and revealing the way in which it works is often an effective way to learn how to build a technology or make improvements to it.

Through reverse engineering, a researcher gathers the technical data necessary for the documentation of the operation of a technology or component of a system. In "black box" reverse engineering, systems are observed without examining internal structure, while in "white box" reverse engineering the inner workings of the system are inspected.

When reverse engineering software, researchers are able to examine the strength of systems and identify their weaknesses in terms of performance, security, and interoperability. The reverse engineering process allows researchers to understand both how a program works and also what aspects of the program contribute to its not working. Independent manufacturers can participate in a competitive market that rewards the improvements made on dominant products. For example, security audits, which allow users of software to better protect their systems and networks by revealing security flaws, require reverse engineering. The creation of better designs and the interoperability of existing products often begin with reverse engineering.

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Question: Is reverse engineering legal?

Answer: Reverse engineering has long been held a legitimate form of discovery in both legislation and court opinions. The Supreme Court has confronted the issue of reverse engineering in mechanical technologies several times, upholding it under the principles that it is an important method of the dissemination of ideas and that it encourages innovation in the marketplace. The Supreme Court addressed the first principle in Kewanee Oil v. Bicron, a case involving trade secret protection over synthetic crystals manufacturing by defining reverse engineering as "a fair and honest means of starting with the known product and working backwards to divine the process which aided in its development or manufacture." [416 U.S. 470, 476 (1974)] The principle that reverse engineering encourages innovation was articulated in Bonito Boats. v. Thunder Craft, a case involving laws forbidding the reverse engineering of the molding process of boat hulls, when the Supreme Court said that "the competitive reality of reverse engineering may act as a spur to the inventor, creating an incentive to develop inventions that meet the rigorous requirements of patentability." [489 U.S. 141 160 (1989)]

Congress has also passed legislation in a number of different technological areas specifically permitting reverse engineering. The Semiconductor Chip Protection Act (SCPA) explicitly includes a reverse engineering privilege allowing semiconductor chip designers to study the layout of circuits and incorporate that knowledge into the design of new chips. The Competition of Contracting Act of 1984 allows the defense industry to inspect and analyze the spare parts it purchases in order to facilitate competition in government contracts.

The law regarding reverse engineering in the computer software and hardware context is less clear, but has been described by many courts as an important part of software development. The reverse engineering of software faces considerable legal challenges due to the enforcement of anti reverse engineering licensing provisions and the prohibition on the circumvention of technologies embedded within protection measures. By enforcing these legal mechanisms, courts are not required to examine the reverse engineering restrictions under federal intellectual property law. In circumstances involving anti reverse engineering licensing provisions, courts must first determine whether the enforcement of these provisions within contracts are preempted by federal intellectual property law considerations. Under DMCA claims involving the circumvention of technological protection systems, courts analyze whether or not the reverse engineering in question qualifies under any of the exemptions contained within the law.

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Question: Is the making of an intermediate copy in the reverse engineering process copyright infringement?

Answer: There have been many attempts by companies over the past two decades to bring claims against software developers for their reverse engineering efforts. Since reverse engineers must make intermediate copies of the original work through the disassembly or decompilation process, the copyright owners of the initial software program have claimed that such a procedure is not covered by Section 117. They have argued that reverse engineering should be considered copyright infringement since some of the retrieved technical data used in the development process includes copyrightable expression.

In Sega v. Accolade, the case most often referred to discussing reverse engineering of computer software, the appellate court determined that reverse engineering is a fair use when "no alternative means of gaining an understanding of those ideas and functional concepts exists." The court considered Accolade's intermediate copying of parts of Sega's video game console during the reverse engineering process in order to make compatible games of minimal significance to the rights in Sega's copyrighted computer code. The court held that forbidding reverse engineering in this context would defeat "the fundamental purpose of the Copyright Act--to encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on."

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Question: How is the development of interoperable products affected by the DMCA?

Answer: The anti-circumvention provisions may hinder innovation in information technology by limiting the ability of potential competitors to reverse engineer the technological protection system behind which the original manufacturer hides their product. Reverse engineering is a traditional method used by industry to understand how systems work and create interoperable products. While the DMCA has an exception that permits reverse engineering to create interoperable products, as discussed below, it may only permit reverse engineering for interoperability between programs, but not for the purpose of making a program available in other platforms. . A strict interpretation of the DMCA may prohibit reverse engineering, regardless of whether or not copyright infringement occurs in the process.

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Question: What are technological protection measures?

Answer: Technological protection systems are already in place in DVDs, eBooks, video game consoles, robotic toys, Internet streaming, and password-protected sections of web sites. The fact that a digital protection may be really weak and easy to circumvent has not prevented courts from applying this law to punish those who bypass them.

The DMCA defines an access control mechanism as a measure which "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." [1201(a)(3)(B)] An access control is a technology, like a password or encryption that controls who or what is able to interact with the copyrighted work. It is a violation of the DMCA to circumvent access controls, but it is also a violation to provide tools to others that circumvent access controls (including selling, distributing free of charge, and possibly even linking to a site with such technology

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Question: Is there really a difference between access controls and copy controls?

Answer: While there is a difference in the types of activities controlled by these technological protection measures, some copyright owners try to merge access and use controls in the implementation of these systems. For example, in trying to implement a "pay-per-use" business model, some copyright owners use a single persistent control system that charge separately for the different uses of a work even after paying to access a work.

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Question: What does circumvention mean?

Answer: Circumvention, according to Section 1201(a)(3)(A), means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." While the full scope of activities and practices that would fall under this definition has not yet been examined by the courts, any act of undoing a "lock" or "block" in a digital system may well be considered circumvention.

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Question: What is a circumvention tool?

Answer: The prohibited tools under the DMCA are the programs which are primarily designed or produced for the purpose of circumvention of an access [1201(2)(a)] or copy control [1201(b)(1)(A)] mechanism. These programs can come in various forms including products, services, devices, or components. The DMCA includes in its definition of circumvention tools that these devices have limited commercially significant purposes other than circumvention or are marketed to be used for circumvention [1201(2)(B-C)], 1201(b)(1)(B-C)].

Congress intended the circumvention device bans to be analogous to laws that specifically prohibit the manufacture or distribution of descrambler boxes that allow access to cable television and satellite services without payment. However, the broad definition of circumvention tools in the DMCA creates numerous situations in which non-infringing uses of copyrighted works are prohibited as well merely because the technology necessary to engage in those legitimate uses is illegal under the circumvention device ban.

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Question: What does it mean to distribute circumvention tools?

Answer: Section 1201(a)(2) defines distribution as the "manufacture, import, offer to the public, provide, or otherwise traffic" of circumvention tools. This definition can be interpreted extremely broadly as evident in the court's analysis in the DVD encryption Universal v. Corley case. In its decision, the court considered not only making the source code of a program for free a type of distribution, but also found that merely linking to a web site containing illegal tools can constitute "trafficking."

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Question: Can a system be legally circumvented?

Answer: It depends. In general, the anti-circumvention provisions of the DMCA reserve broad authority to copyright holders to determine who can circumvent their systems.

For example, while the DMCA contains an encryption research exemption, to come under the exception, a researcher must lawfully obtain the work and request the permission from the copyright holder to engage in circumvention in order to be exempted [1201(g)(2)(C)]. In addition, under the DMCA only individuals who are studying, trained, or employed in encryption research are likely to be considered legitimate researchers under the law [1201(g)(3)(B)]. Finally, an encryption researcher is required to immediately notify the creator of the protection system when she breaks it. [1201(g)(3)(C)] The security testing exemption is even more restrictive in its rules about obtaining authorization from the copyright owner. It requires individuals engaged in security testing to not only request, but must actually obtain the authorization. [1201(j)(1)] On the other hand, the exemption relating to law enforcement, intelligence, and other government purposes have no such requirements to notify copyright owners of their activities. [1201(e)]

One important limitation to the control given to copyright owners is that manufacturers and developers of consumers electronics, telecommunications, or computing products are not required to design their products to respond to the digital protection systems implemented by copyright owners in their works. [1201(c)(3)] In this limitation, the DMCA anticipated the excessive control that copyright owners might exercise over the products used to play their works in addition to the works themselves.

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Question: Are there exceptions in the DMCA to allow circumvention of technological protection systems?

Answer: There are seven exemptions built into section 1201 of the DMCA, some of which permit the circumvention of access and copy controls for limited purposes, some of which allow for the limited distribution of circumvention tools in particular circumstances. These seven exemptions are for:

  • Libraries, archives, and educational institutions for acquisition purposes; [1201(d)]
  • Law enforcement and intelligence gathering activities; [1201(e)]
  • Reverse engineering in order to develop interoperable programs; [1201(f)]
  • Encryption Research; [1201(g)]
  • Protecting minors from material on the Internet; [1201(h)]
  • Protecting the privacy of personally identifying information; [1201(i)]
  • Security Testing [1201(j)]

In addition to these seven exemptions, the Library of Congress is required every three years to exempt the circumvention of measures that prevent the "fair use" of copyrighted works. [1201(a)(1)(B-E)] The DMCA also contains provisions that ensure that the traditional rights of copyright law still apply to the DMCA. Section 1201(c)(1) provides that the rights, remedies, limitations, or defenses to claims of copyright infringement still apply. Section 1201(c)(4) states that these provisions should not affect the rights to free speech or freedom of the press for activities using electronics, telecommunications, or computing products.

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Question: Is the reverse engineering of a technological protection measure illegal under the DMCA?

Answer: The Digital Millennium Copyright Act (DMCA) made an effort to recognize the value of interoperability to competition and innovation and included an exemption expressly allowing reverse engineering in order to preserve a healthy market in the information technology industry. Section 1201(f) of the DMCA allows software developers to circumvent technological protection measures of a lawfully obtained computer program in order "the elements necessary to achieve interoperability of an independently created computer program with other programs." A person may reverse engineer the lawfully acquired computer program only where the elements necessary to achieve interoperability are not otherwise readily available and reverse engineering is otherwise permitted under the copyright law. The reverse engineer is required to ask permission first, however. The prohibition on the dissemination of circumvention devices also applies to reverse engineering. Under the "trafficking ban", a person may only develop and employ technological means to circumvent and make the circumvention information or tool available to others solely for the purpose of achieving interoperability. Reverse engineers are not exempt from the "trafficking ban" only if they permit the device to be made available to other persons for the purpose of gaining access to protected works for infringing purposes.

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Question: What are the limitations of the interoperability criteria for the DMCA's reverse engineering exemption?

Answer: Section 1201(f) allows software developers to circumvent technological protection measures of a computer program that was lawfully obtained in order to identify the elements necessary to achieve the interoperability of an independently created computer program to achieve program to program interoperability. This means that reverse engineering a product to achieve interoperability between data and program is not permitted, nor is reverse engineering for any other purpose. In Universal v. Corley, the district court in New York held that this limitation on the interoperability criterion of the exemption therefore did not apply to the circumvention of the access control mechanism protecting digitally formatted works, such as music, movies, or video games. In order to be viewed on a computer, motion pictures on DVD require software systems that enable the Content Scrambling System to be decrypted in addition to the hardware requirement of a DVD drive. From the perspective of the consumer, the inability to view their DVDs on computer players that do not decrypt CSS may seem to be a problem of software interoperability.

The issue of whether or not the use of a technological protection measure can allow a copyright owner to control the hardware products on which the protected content can be used has not yet been fully addressed by the courts. By limiting the reverse engineering exemption to interoperability between programs, the DMCA may have effectively granted copyright owners some control over the hardware products used to operate digitally protected content in addition to the content itself. Without consideration of the effect of technological protection measures, courts have held that copyright holders cannot use copyright to exercise control over products which are outside the scope of the owner's rights under copyright. For example, in the recent case of Sony v. Connectix (which did not include a DMCA claim), the Ninth Circuit held that a product allowing Sony games to be played on computers and not only on the Sony PlayStation was a creation of a new product. The court considered the reverse engineering work engaged in during the creation of the product a "transformative" use of the initial copyrighted work, making it permissible according to copyright law.

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Question: How are software development projects conducted over the Internet affected by the DMCA?

Answer: While the reverse engineering exemption permits software programmers to develop and distribute circumvention tools as part of their projects, there are significant limitations over who can do so and in what manner they can do it. Section 1201(f)(3) provides that only the person who performs the reverse engineering can provide the information necessary to achieve interoperability to others. Collaborative project environments conducted over the Internet, such as those used by many open source software developers may be considered illegal under a strict interpretation of the exemption. Even if the sharing of information regarding circumvention is done for the purpose of developing an interoperable product, its placement on the Internet may be interpreted as "trafficking" under the circumvention device ban.

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Question: Do the Section 512 Safe Harbor provisions apply to the distribution of circumvention tools such as serial numbers or to methods for disabling copyright management systems?

Answer: Section 512 creates a safe harbor from claims of "copyright infringement" for service providers who meet the statutorily-defined criteria. "Copyright infringement" is defined by Section 501 of the Copyright Act as any violation of the exclusive rights granted in sections 106 through 121 of the Act. Copyright infringement thus does not include violations of the DMCA's Anticircumvention provisions, which are found in Section 1201 et seq. While they are unlikely to be deemed direct infringers, distributors of serial numbers may face either vicarious or contributory liability for copyright infringement. Vicarious liability requires that the distributor have the right and ability to control the infringer's behavior and direct financial gain by the distributor. In circumstances of serial numbers posted on free message boards of Usenet groups, the distributor likely lacks both control and financial benefit. Contributory liability requires that the distributor possess knowledge of infringing conduct and materially contribute to the infringement. Although a distributor of serial numbers is likely aware that the numbers will be used to infringe, under Sony, if the serial numbers are capable of capable of "substantial non infringing use" contributory infringement may not be found.

The anticircumvention provisions prohibit circumvention of technological access protection systems as well as the distribution of tools that facilitate circumvention of access or copy protection systems. The publication of serial numbers, for example, would likely constitute the distribution of a "technology, product, service, device, component, or part thereof" that facilitates circumvention of an access control. Under ? 1201 such a tool must either be primarily designed for or produced circumvention, have limited commercial purpose other than circumvention, or be marketed for circumvention. It is unlikely, however, that the publication would constitute "copyright infringement" as defined.

While a service provider may be under no obligation to remove material in violation of the Anticircumvention provisions in order to maintain its safe harbor protection from copyright infringement, by hosting such material the provider is exposed to potential secondary liability under Section 1201 and may therefore have an independent reason for removing the material.

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Question: What are the penalties for violating the DMCA's anti-circumvention provisions?

Answer: The DMCA allows for both civil remedies and criminal penalties for violations under the anti-circumvention provisions. If the violations are determined to be willful and for commercial purposes or private financial gain, the court can order significant fines and/or imprisonment.

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Question: Why does a web host or blogging service provider get DMCA takedown notices?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

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)].

Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.

Question: Does a service provider have to follow the safe harbor procedures?

Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.

Question: How do I file a DMCA counter-notice?

Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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