Mail Software Complains of Cracks

Sender Information:
Rockliffe
Sent by: [Private]
[Private]
Campbell, CA, 95006, US

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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 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: 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.

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Answer: A trademark is a "mark" (word, phrase, symbol, design, mark, device, or combination thereof) used to identify the source of a product. Trademarks allow consumers to evaluate products before purchase.

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Answer: Yes. Software copyright law is a recent branch of the 1976 Copyright Act that was intended to protect artistic creations and creativity. Initially there was a question of whether copyright law could protect software because computer programs contain functional instructions regarding what a computer should do if given a command. Strictly functional instructions and ideas are not copyrightable because they do not meet the minimal copyright requirement for creativity. The existence of a requisite level of creativity was questioned in software. During the 1980s, however, through court decisions and congressional guidance, copyright law became a major form of legal protection for computer programs, some databases, and software technology. Through copyright protection, creators of computer programs can prevent or seek damages for unauthorized copying of programs. This right is not absolute, however. Courts still question whether particular elements of computer programs are sufficiently expressive to be protectable under copyright law. For example, some courts have held that a software program's graphical user interface (GUI) (or at least some elements of it) is insufficiently expressive for copyright protection.

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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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Answer: While the validity of licensing prohibitions of reverse engineering has not yet been decided by courts, the conflict between state laws that would enforce these provisions and federal intellectual property law has been addressed. When considering cases where breach of contract or trade secret misappropriation is claimed (both state law claims), courts must first determine whether or not intellectual property law preempts those contracts enforced by the individual state. Preemption occurs when courts determine that federal intellectual property law must be considered in order to address the issues involved in the particular provisions.

Section 301 of the Copyright Act provides that a state law claim is preempted if:

1. (1) the work to be protected comes within the subject matter of copyright; and
   
2. (2) the state-created right forming the basis of the state law claim is equivalent to any of the exclusive rights within the general scope of copyright."

In order for the claim to be preempted it must first pass this equivalency test, which determines whether the state-created rights in upholding the contract are merely alternative articulations of the exclusive rights of copyright law. If the court determines that the contract provisions contain an "extra element" that require analysis of the contract to be preempted by copyright law, the courts generally proceed to an analysis of the possible infringement or exemption under fair use of the activities of the reverse engineer.

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Answer: The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy.

Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.

To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.

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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.

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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