FAQ: Questions and Answers

[back to notice text] Question: What is the Digital Millennium Copyright Act? Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor). [back to notice text] Question: What are the notice and takedown procedures for web sites? 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. [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 protection? Answer: A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permision of the copyright owner. 17 U.S.C. [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 may be copyrighted? Answer: In order to be copyrightable, a work must be 1. fixed in a tangible medium of expression ; and 2. original. Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. [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 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: Does copyright protect words or short phrases? Answer: No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be "original works of authorship" under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information. [back to notice text] Question: Can search engines be liable for copyright infringement by providing hyperlinks to search results? Answer: Some Internet search engines have been getting "takedown" requests under the Digital Millennium Copyright Act, Section 512 (see DMCA Safe Harbor for more information). The DMCA provides a safe harbor to information location tools that comply with takedown notices, but it is not settled whether they would be liable for copyright infringement if they did not use the safe harbor. Arguably, computer-generated pages of links do not materially facilitate infringing activity or put their hosts on notice of copyright infringements. [back to notice text] Question: How do I identify the owner of a domain name? Answer: The quickest way is to use the global lookup tools such as Geektools, SamSpade, or uWhois multi-registrar WHOIS services. These are not authoritative directories, however, because they merely link to the databases of other directory services. To verify actual registration data of a particular domain name, use the Whois tool hosted by the registry for the top level domain in question. UniNett keeps a list of links to all top level domain registries. [back to notice text] Question: How do I find a "WHOIS" record? Answer: On the web, you can start with the InterNIC registrar lookup, http://www.internic.net/whois.html and follow that to the registrar's website, or try combined lookups at SamSpade, GeekTools, or uWhois. Command line tools are available that use the port 43 WHOIS protocol. [back to notice text] Question: What is fair use? Answer: Copyright law seeks to promote the production and distribution of creative works by conferring property rights on authors. The principle of fair use serves to mediate between these property rights and the constitutional rights of public access and free speech embodied in the First Amendment. Fair use serves an important social function by allowing for the use of parts of creative works for the sake of criticism, commentary, and reporting. To decide whether a use is "fair use" or not, courts consider: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and, the effect of the use upon the potential market for or value of the copyrighted work.[17 U.S.C. 107(1-4)] The principles of fair use are invoked when the transaction costs associated with gaining authorization from copyright owners to make use of works is too burdensome in reasonable circumstances. Fair use also permits the reproduction of art and information for the private, noncommercial sharing of those works. Fair use allows for market competitors to use copyrighted works in ways that allow them to extract the public domain aspects of those works in order to develop innovative products. [back to notice text] Question: What does "under penalty of perjury" mean? Answer: Law.com offers a good definition of perjury: "Perjury is the the crime of intentionally lying after being duly sworn (to tell the truth) by a notary public, court clerk or other official. This false statement may be made in testimony in court, administrative hearings, depositions, answers to interrogatories, as well as by signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) known to contain false information. Although it is a crime, prosecutions for perjury are rare, because a defendant will argue he/she merely made a mistake or misunderstood." [back to notice text] Question: What is the purpose of copyright law? Answer: Copyright law provides an incentive to create software, music, literature and other works by ensuring that the creator will be able to reap the financial benefits of the work.

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