FAQ: Questions and Answers

[back to notice text] 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. [back to notice text] 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. [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 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. [back to notice text] Question: Can I post a copyrighted image on my website? Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis. First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images. Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one. Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use. Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market. These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use. [back to notice text] Question: What is "remote loading"? Answer: Some websites appear to use this term as a synonym for "hyperlinking" or "inline" linking (see What is an "inline" image?). Since inline links do not copy the content they link, this practice has not been held to be an infringement of copyright. (see Does the fair use doctrine permit an operator of a...?). [back to notice text] 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 [back to notice text] Question: Is "deep linking" illegal? Answer: "Deep linking" refers to the creation of hyperlinks to a page other than a website's homepage. For example, instead of pointing a link at http://www.chillingeffects.org, this site's "homepage," another site might link directly to the linking FAQ at http://www.chillingeffects.org/linking/faq . Some website owners complain that deep links "steal" traffic to their homepages or disrupt the intended flow of their websites. In particular, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled its claim against Microsoft and lost a suit against Tickets.com over deep linking. From Ticketmaster v. Tickets.com opinion: Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently. So far, courts have found that deep links to web pages were neither a copyright infringement nor a trespass. [back to notice text] Question: Do I need permission to link to someone else's site? Answer: In general, if someone is making a website publicly available, others may freely link to it. That open linking is what makes the web a "web." [back to notice text] Question: What are the "trespass to chattels" claims some companies or website owners have brought? Answer: Some Internet companies have claimed that unauthorized use of their servers, such as unsolicited email or robot-generated hits to websites, are a "trespass" to those servers by depriving the owners of the full use of their machines. eBay won an injunction stopping Bidder's Edge from automatically spidering the eBay site to generate auction comparison listings, because the robotic crawler used eBay system resources. The caselaw is far from settled in this area, and some commentators argue that technical means to block the use are more appropriate than legal action. See Tom W. Bell's online casebook for more information about trespass claims. [back to notice text] Question: Why is anonymous speech important? Answer: There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support - victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous – sometimes for their very lives. [back to notice text] Question: Can a copyright owner find out the identity of the individual responsible for the allegedly infringing material? Answer: The safe harbor provisions permit a copyright owner to subpoena the identity of the individual allegedly responsible for the infringing activities. [512(h)] Such a subpoena is granted on the condition that the information about the individual's identity will only be used in relation to the protection of the intellectual property rights of the copyright owner. [512(h)(2)(C)] The DMCA subpoena provision does not apply to requests for the identities of users of ISP conduit 512(a) services, but only to users of hosting or linking, for which a takedown may be sent under 512(c)(3)(A). Thus DMCA subpoenas cannot be used to find the identities of users engaged in peer-to-peer filesharing. Recording Industry Assoc. of America v. Verizon Internet Svcs., Inc. [back to notice text] Question: How is Internet anonymity affected by Section 512(h) subpoenas? Answer: Since anyone who has ever written or typed something is a copyright holder, it is possible that any of these people might misuse the Section 512(h) subpoena to discover identity for purposes other than vindicating copyright rights. In some instances, the fear of improper discovery of their identity will intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment. [back to notice text] Question: What does the "reservation of rights" language mean? What are they "waiving" at me? Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.

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