FAQ: Questions and Answers

[back to notice text] Question: ISP as Copyright Cop Answer: Notice that this letter comes from an Internet Service Provider (ISP) and not from a copyright owner. The Digital Millenium Copyright Act both protects ISPs from copyright liability (leaving the end user with that liability) and requires ISPs to participiate in a "takedown" process when copyright owners claim infriging use. See the FAQs associated with this notice for more information. [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 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. [back to notice text] Question: What are the DMCA's anti-circumvention provisions? Answer: The Digital Millennium Copyright Act (DMCA) is the latest amendment to copyright law, which introduced a new category of copyright violations that prohibit the "circumvention" of technical locks and controls on the use of digital content and products. These anti-circumvention provisions put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works. The DMCA contains four main provisions: a prohibition on circumventing access controls [1201(a)(1)(A)]; an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)]; a copyright protection circumvention device ban [1201(b)]; and, a prohibition on the removal of copyright management information (CMI) [1202(b)]. The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities. [back to notice text] Question: What is vicarious liability? Answer: Vicarious liability, a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site. [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) [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 a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright? Answer: The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions (DMCA Safe Harbor) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint. If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials. [back to notice text] Question: What are the counter-notice and put-back procedures? 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. [back to notice text] Question: What constitutes copyright infringement? Answer: Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission: 1. reproduce (copy) the work; 2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression); 3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she posesses.) 17 U.S.C. ?109(a); 4. perform or display the work in public without permission from the copyright owner. 17 U.S.C. ?106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed here. [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) [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

Topic maintained by Stanford Center for Internet & Society