Sender Information:
MPAA
Sent by: [private]
Worldwide Internet Enforcement
United States Ant
[private]
Encino, CA, 91436, US

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Answer: The safe harbor provisions make a special exception to educational institutions that qualify as service providers under section 512. [512(e)] While a corporation is responsible for the activities of its employees, faculty members or graduate student employees who are performing teaching or research functions are not considered a part of the institution itself for certain infringing activities so as to maintain the academic freedom of these institutions. [512(e)(1)]

The institution can therefore avoid liability for infringement even if the infringing individuals knew they were infringing, provided that:

• the infringing activities did not involve the provision of access to materials required for a course within the previous three years [512(e)(1)(A)]
  
• the institution has not received more than two notifications of alleged infringement by the faculty member or graduate student in the preceding three year period [512(e)(1)(B)]
  
• the institution provides all users of its network or system with informational materials that describe and promote compliance with copyright law [512(e)(1)(C)]

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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)]

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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.

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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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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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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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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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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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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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Answer: Civil cases are brought in federal district court where the court has broad authority to grant injunctive and monetary relief. Injunctions can be granted forbidding the distribution of the tools or products involved in the violation. The court may also order the destruction of the tools or products involved in the violation. The court can also award actual damages, profits gained through infringement, and attorney's fees. If an individual held in violation of the DMCA commits another such violation within the three-year period following the judgment, the court may increase the damages up to triple the amount that would otherwise be awarded.

In circumstances involving innocent violators, it is up to the courts to decide whether to reduce damages. But, in the case of nonprofit library, archives or educational institutions, the court must remit damages if it finds that the institution did not know of the violation.

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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.

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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)].

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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.

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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.