Copyright Infringement with ISP Account -- Chilling Effects Clearinghouse

We have received a complaint regarding your use of [ISP] Internet Services.
The specific complain alleges that you have been involved in an Alleged
Copyright Infringement while using your [ISP] Internet Services account. We
have advised the complainant to deal directly with you, which may lead to
court action. [ISP] Internet Services will cooperate fully with the
courts. Abuse of your [ISP] Internet Services may result in a disconnection
of your [ISP] Internet Services account.

If you are unaware of this type of activity coming from your account, you
may wish to inquire with others who may have access to your account and/or
change the password to your account to ensure that only authorized users
have access to it.

- Pirated commercial software.
- Any program or information designed to assist users in
defeating the copy-protection, registration or other anti-theft mechanisms
associated with commercial or shareware
- software programs.
Any program or information designed to assist in the fraudulent use of
telecommunications services.

The Canadian Recording Industry Association ("CRIA") represents all of the
major record companies and leading independent labels in Canada. In all, the
CRIA members represent in excess of 90% of all sound recordings
manufactured, distributed and sold in the Canadian market. CRIA is the
national group of the International Federation of the Phonographic Industry
("IFPI"), an International trade association representing the recording
industry, with more than 1,400 independent and multinational record company
members and 45 National groups.

CRIA is writing to inform you that a 'Napster-like' service providing
peer-to-peer links and allowing the widespread transmission and reproduction
of copyrighted music files is being hosted or otherwise made available on
your Internet service at the IP address xxx.xxx.xxx.xxx.

The Napster-like service hosted or otherwise made available on your Internet
service indexes, allows searches of, and makes accessible many links to
music files residing in the file libraries of users connected to this
system. This promotes and assists large-scale Internet transmission and
copying of music files between users.

This system, which was investigated on 09/07/01 at 3:32:00 PM GMT, offers
extensive directories of downloadable digitally encoded files containing
copyrighted sound recordings. At the time of CRIA's investigation,
approximately 451 users were, via this Napster-like service listed at the IP
address above, making available on the Internet, uploading and downloading
approximately 124101 files containing recorded music. According to our
investigation, it appears that the vast majority of these sound recordings
are owned by our member companies. This activity is not authorized by the
copyright owners or their agents and is contrary to the law.

The system provided at the IP address listed above is almost identical to
the system of Napster Inc. You may be aware that the United States Circuit
Court for Ninth Circuit recently found that the Napster service knowingly
encourages and assists widespread copyright infringement and, in doing so,
directly affects the legitimate market for copyrighted works. The trial
court has issued preliminary injunction against Napster. You may obtain a
copy of the Ninth Circuit decision at
http://www.riaa.com/pdf/napsterdecision.pdf .

On the basis of the Napster decision, Internet service providers in the US
have voluntarily been blocking access to similar Napster-like services, upon
receipt of a notice like this one from the US recording industry
association. Blocking access to Napster-like services not only reduces the
service provider's exposure to liability, but also helps them secure
compliance with their own terms of service with their customers. Many
service providers' terms of service specifically prohibit users from
operating a server such as those required for Napster-like services, in
order to avoid the bandwidth and speed problems that high-volume sites like
these generate.

We therefore request that you immediately remove or block access to the
infringing material offered via this server, which can be accomplished most
effectively by blocking access to xxx.xxx.xxx.xxx. We also ask that you
inform the server operator that you have blocked access to his/her server by
reason of the copyright infringement that it is facilitating, and confirm to
CRIA that this activity has ceased.

FAQ: Questions and Answers

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Question: Can an ISP shut down my service because of copyright infringement?

Answer: Yes. When you sign up for a service, you enter into an agreement with the company. Using the service for infringing purposes likely violates the terms of the agreement.

http://www.makeuseof.com/tag/what-to-do-when-you-get-a-copyright-infringement-notice/

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Question: What rights are protected by copyright law?

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.

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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.

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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:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
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.

Copyright Infringement with ISP Account

Topic maintained by USF Law School - IIP Justice Project