FAQ: Questions and Answers

[back to notice text] Question: Am I protected by Digital Millennium Copyright Act's Safe Harbor? Answer: You may be, if you follow the DMCA's strict requirements, though different courts have disagreed on how to apply the protections. The DMCA, in the Safe Harbor provisions of 17 U.S.C. 512, limits the liability of "online service providers" (OSPs) for copyright infringement by their users. Though some debate remains over who qualifies as an OSP, the rule's history suggests that website and bulletin board operators qualify for its protections. The Safe Harbors apply to: 1. Storage of material on a system at a user's request. (e.g. pirated software, serial numbers or cracker utilities posted on message boards or in chat rooms) 2. Referral to other online resources. (e.g. linking to other sites that make infringing material available) 3. Caching of online materials from other sites. (e.g. temporary storage of other web pages on one's own server) 4. Acting as a conduit between users. (e.g. automatic delivery of e-mail between users) In order to be protected for storage and linking (1 and 2, above), you must: i. Lack actual knowledge and immediately remove or block access to the material when becoming aware of the infringement ii. Not benefit financially from the activity iii. Comply with the notice and takedown provisions and set up an agent to deal with complaints in accordance with the Act In order to be protected for acting as a conduit (4, above): i. A person other than the OSP must initiate the transmission ii. The process must happen automatically, without any selection or modification of material or recipients by the OSP iii. No copies of the material should be kept longer than necessary by the OSP [back to notice text] Question: I do not know what these cases or statutes cited in the C&D mean. Answer: If your opponent has cited cases and statutes in the C&D, do not freak out. The fact that your opponent can include some legal authority in the C&D does not mean that the law is on its side. If you can, go look up the cases and statutes to see what they say. You can go to the nearest law school's law library for help, or you can try a free legal resource web site like Findlaw. Many of them are accessible on the Internet by keyword search using the full case name or it's citation (the numbers and abbreviations that follow the names of the parties). If your opponent is relying on federal law, it will probably cite one or more of the following sections of the Lanham Act: (1) section 32 (also known as section 1114); (2) section 43(a) [a/k/a section 1125(a)]; or (3) section 43(c) [a/k/a section 1125(c)]. (The smaller numbers indicate how the statutory sections were numbered when the law was a bill in Congress; the larger numbers indicate how the statutory sections were re-numbered when the law was codified in the U.S. Code. Under either numbering system, the laws say the same thing). An additional statute, the Anti-cybersquatting Consumer Protection Act (ACPA) [a/k/a section 1125(d) relates specifically to domain names. Section 32 (codified as 15 U.S.C. 1114) is the basic statute governing trademark infringement of registered marks. If you use a mark in commerce that is confusingly similar to a registered trademark, you may be civilly liable under section 32. This section describes how to determine infringement, what the remedies are, and what defenses are available. Section 43(a) [codified as 15 U.S.C. 1125(a)] is the "false designation of origin" statute. If you use a mark in commerce that is likely to cause confusion or deception as to affiliation, association, origin, or sponsorship with another trademark, you may be civilly liable under section 43(a). Section 43(a) does not require that any of the marks be registered. Section 43(c)[codified as 15 U.S.C. 1125(c)] is the "anti-dilution" provision. This section allows the owner of a famous trademark to prevent use of the mark by junior users whose use [back to notice text] Question: Does the fair use doctrine permit individuals to upload and download digital audio files containing copyrighted music through a file-sharing service that facilitates transmission and retention of the files by its users? Answer: The courts that have considered this issue to date have held that this type of "peer to peer file sharing" violates the copyright owner's exclusive right to reproduce their copyrighted material and does not constitute a fair use. The Ninth Circuit Court of Appeals applied the four factor fair use analysis to address this issue. First, the court found that the purpose and character of such a use was not transformative, since the work was merely retransmitted in a different medium. Also, such use was found to be commercial in nature and resulted in the exploitation of copyrighted works since it saved the users the expense of purchasing the authorized copies. The court also focussed on the fourth factor, the effect of the use on the market. The court concluded that the internet service harmed the market for the plaintiff's copyrighted material by reducing CD sales and by interfereing with the copyright holder's attempts to charge for the same internet downloads. A&M Records v. Napster, 239 F.3d 1004; see also MGM v. Grokster [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 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: 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: Does the fair use doctrine permit individuals to upload and download digital audio files containing copyrighted music through a file-sharing service that facilitates transmission and retention of the files by its users? Answer: The courts that have considered this issue to date have held that this type of "peer to peer file sharing" violates the copyright owner's exclusive right to reproduce their copyrighted material and does not constitute a fair use. The Ninth Circuit Court of Appeals applied the four factor fair use analysis to address this issue. First, the court found that the purpose and character of such a use was not transformative, since the work was merely retransmitted in a different medium. Also, such use was found to be commercial in nature and resulted in the exploitation of copyrighted works since it saved the users the expense of purchasing the authorized copies. The court also focussed on the fourth factor, the effect of the use on the market. The court concluded that the internet service harmed the market for the plaintiff's copyrighted material by reducing CD sales and by interfereing with the copyright holder's attempts to charge for the same internet downloads. A&M Records v. Napster, 239 F.3d 1004; see also MGM v. Grokster [back to notice text] Question: Am I protected by Digital Millennium Copyright Act's Safe Harbor? Answer: You may be, if you follow the DMCA's strict requirements, though different courts have disagreed on how to apply the protections. The DMCA, in the Safe Harbor provisions of 17 U.S.C. 512, limits the liability of "online service providers" (OSPs) for copyright infringement by their users. Though some debate remains over who qualifies as an OSP, the rule's history suggests that website and bulletin board operators qualify for its protections. The Safe Harbors apply to: 1. Storage of material on a system at a user's request. (e.g. pirated software, serial numbers or cracker utilities posted on message boards or in chat rooms) 2. Referral to other online resources. (e.g. linking to other sites that make infringing material available) 3. Caching of online materials from other sites. (e.g. temporary storage of other web pages on one's own server) 4. Acting as a conduit between users. (e.g. automatic delivery of e-mail between users) In order to be protected for storage and linking (1 and 2, above), you must: i. Lack actual knowledge and immediately remove or block access to the material when becoming aware of the infringement ii. Not benefit financially from the activity iii. Comply with the notice and takedown provisions and set up an agent to deal with complaints in accordance with the Act In order to be protected for acting as a conduit (4, above): i. A person other than the OSP must initiate the transmission ii. The process must happen automatically, without any selection or modification of material or recipients by the OSP iii. No copies of the material should be kept longer than necessary by the OSP [back to notice text] Question: What is the significance of Section 512(a) of the DMCA to service providers? Answer: If a service provider falls within the requirements of subsection 512(a), then it will not be liable for monetary, injunctive, or other equitable relief. Specifically, a service provider will not be liable for copyright infringement by reason of (1) the service provider [back to notice text] Question: What are the penalties for copyright infringement, such as making infringing copies of software? Answer: In a civil suit, an infringer may be liable for a copyright owner's actual damages plus any profits made from the infringement. Alternatively, the copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504) Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment depending on the nature of the violation. (No Electronic Theft Act, 18 U.S.C. 2319)

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