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 Chilling Effects Clearinghouse > DMCA Safe Harbor > Notices > Universal Studios Stumbles on Internet Archive's Public Domain Films (NoticeID 595, http://chillingeffects.org/N/595) Printer-friendly version

Universal Studios Stumbles on Internet Archive's Public Domain Films

February 27, 2003

 

Sender Information:
Universal City Studios, Inc.
Sent by: [Private]
Manager of Internet Anti-Piracy, Worldwide Anti-Piracy Operations
Universal City, CA, 91608, US

Recipient Information:
[Private]
Internet Archive


Sent via: email
Re: *** DMCA Notification [Notice ID: 37683]; Re: Unauthorized Use of Universal Motion P

Dear Sir or Madam:

Please be advised that Universal City Studios, Inc. and its affiliated companies (collectively "Universal") are the exclusive owners of certain copyright, trademark, and other intellectual property rights in and to the renowned motion picture properties (the "Universal Properties"), including, but not limited to those listed below this notice (the "Universal Motion Pictures").

Notwithstanding this, it has come to our attention that the Internet site(s) located below, for which Internet Archive is a service provider, is offering unauthorized copies of the Universal Motion Pictures. Universal diligently enforces its rights to the Universal Properties in all forms of media. As you may be aware, Internet Service Providers can be held liable if they do not respond to claims of infringement pursuant to the requirements of the Digital Millennium Copyright Act (the "DMCA"). In accordance with the DMCA, we are notifying you of infringements on an Internet site for which you act as an Internet Service Provider.

We hereby request your assistance in ceasing the distribution, sale, and/or offering for sale of the infringing VCDs, and any other unauthorized copies of Universal Properties, on this Internet site and any other sites for which you act as an Internet Service Provider. Please contact me regarding this matter at your earliest convenience.

Under the penalty of perjury, the undersigned is authorized to act on behalf of Universal with respect to this matter and the information contained in this transmission is accurate. Please contact me regarding this matter at your earliest convenience.

Finally, please be advised that this letter is not intended as a complete statement of the facts or law as they pertain to this matter, and that Universal reserves all rights and remedies.


Very truly yours,

[Private]
Manager of Internet Anti-Piracy,
Worldwide Anti-Piracy Operations
UNIVERSAL STUDIOS, INC.
[Private]
Universal City, CA 91608
tel. [Private]
fax [Private]
antipiracy@[private]


Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 19571.mpg
Infringing Filesize: 436854000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 20571a.mpg
Infringing Filesize: 349336000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 20571b.mpg
Infringing Filesize: 400060000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 19571.rm
Infringing Filesize: 191633000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 20571a.rm
Infringing Filesize: 132056000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 20571b.rm
Infringing Filesize: 151159000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 19571.mpg
Infringing Filesize: 191174000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 20571a.mpg
Infringing Filesize: 131737000
Infringers IP Address: 209.237.233.141

Title: U-571
Infringement Source: FTP
Infringement Timestamp: 2/22/2003 12:15:00 AM
Infringer Username: None
Infringing Filename: 20571b.mpg
Infringing Filesize: 150842000
Infringers IP Address: 209.237.233.141

 
FAQ: Questions and Answers

[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.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.


[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 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 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.


[back to notice text]


Question: Does a copyright owner have to specify the exact materials it alleges are infringing?

Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)].

However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material.


[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 person harmed for any damages that resulted from the improper removal of the material. [512(f)]

See also How do I file a DMCA counter-notice?, and the counter-notification generator.


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