fw:case id 914092 - notice of claimed infringement -- Chilling Effects Clearinghouse

The Insightbb.com Office of the Registered Copyright Agent has received a notification from a copyright holder that your Insightbb.com account was used to post or make available for copying certain copyrighted material without authorization from the alleged copyright owners (see attached).
In response to such notice and pursuant to the Digital Millennium Copyright Act, you must immediately cease the activity to the extent it violates the copyright rights of the complainant.
If we receive another complaint about continuing or additional infringing activity, Insight reserves the right to disable access and terminate your Insightbb.com service.
Please see our "Insight Policies For Considering Trademark And/Or Copyright Infringement Claims Made to Insightbb.com Service" posted at http://www.insightbb.com/ for complete details.
If material has been blocked or your service disabled and you believe that the complaint filed with us was incorrect, please help us by sending us a Counter Notification explaining why the complaint that we have received is incorrect. Please send the Counter Notification to [Private] or [Private] Edgewood, KY 41017, and/or via facsimile to [Private].
To be fully informed about file sharing, you may review the Dangers of File Sharing at http://Insightbb.com/security/onlinesharing_dangers.html and how to Disable File Sharing at http://help.Insightbb.com/security/disable_onlinesharing.html. These articles are posted in the Help Section of our Insightbb.com home page.
Thank you for your cooperation and we look forward to retaining you as a valued Insightbb.com customer.
Sincerely,
[Private]
Insightbb.com Services

-----Original Message-----
From: ESA DMCA Enforcement [Private]]
Sent: Friday, August 15, 2003 11:24 AM
To: [Private]
Subject: Case ID 915583 - Notice of Claimed Infringement

Attention: Piracy Enforcement - DMCA Officer
Telephone: [Private]
Fax: [Private]
E-mail: [Private]

I am an authorized representative of the Entertainment Software Association ("ESA"), which represents the intellectual property interests of twenty-four
(24) companies that publish interactive games for video game consoles, personal computers, handheld devices and the Internet.

ESA is providing this letter of notification pursuant to the Digital Millennium Copyright Act and 17 USC Sec. 512 (c) to make Insight Midwest, L.P. aware of material on its network or system that infringes the exclusive copyright rights of one or more ESA members. This notice is addressed to you as the agent designated by Insight Midwest, L.P. to receive notifications of claimed infringement, as so reflected in the current records of the U.S. Copyright Office. Under penalty of perjury, we hereby affirm that the ESA is authorized to act on behalf of the ESA members whose exclusive copyright rights we believe to be infringed as described herein.

ESA has a good faith belief that the Internet site found at [Private] continues to infringe the rights of one or more ESA members by offering for download one or more unauthorized copies of one or more game products protected by copyright, including, but not limited to:

The unauthorized copies of such game product[s] appearing on, or made available through, such site are listed and/or identified thereon by their titles, variations thereof, or depictions of associated artwork (any such game titles, copies, listings and/or other depictions of, or references to, any contents of such game product, are hereinafter referred to as "Infringing Material"). Based on the information at its disposal on
8/15/2003 at 3:24 a.m. EDT (GMT -0400), ESA believes that the statements in this Notice are accurate and correctly describe the infringing nature and status of the Infringing Material.

Accordingly, ESA hereby requests Insight Midwest, L.P. to immediately remove or disable access to the Infringing Material at the URL address identified above.

Should you have questions, please contact the ESA at the above listed mailing address or by replying to this email. Please also include the above noted Reference Number in the subject line of all email correspondence.

We thank you for your cooperation in this matter. Your prompt response is appreciated.

------------------------------
Infringement Detail:
Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part01.rar First Found: 15 Aug 2003 03:09:27 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:27 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part02.rar First Found: 15 Aug 2003 03:09:29 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:29 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part03.rar First Found: 15 Aug 2003 03:09:31 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:31 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part04.rar First Found: 15 Aug 2003 03:09:32 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:32 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part05.rar First Found: 15 Aug 2003 03:09:33 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:33 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part06.rar First Found: 15 Aug 2003 03:09:35 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:35 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part07.rar First Found: 15 Aug 2003 03:09:36 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:36 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part08.rar First Found: 15 Aug 2003 03:09:37 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:37 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part09.rar First Found: 15 Aug 2003 03:09:39 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:39 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part10.rar First Found: 15 Aug 2003 03:09:40 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:40 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part11.rar First Found: 15 Aug 2003 03:09:41 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:41 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part12.rar First Found: 15 Aug 2003 03:09:43 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:43 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part13.rar First Found: 15 Aug 2003 03:09:44 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:44 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part14.rar First Found: 15 Aug 2003 03:09:46 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:46 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part15.rar First Found: 15 Aug 2003 03:09:47 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:47 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part16.rar First Found: 15 Aug 2003 03:09:48 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:48 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part17.rar First Found: 15 Aug 2003 03:09:50 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:50 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part18.rar First Found: 15 Aug 2003 03:09:51 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:51 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part19.rar First Found: 15 Aug 2003 03:09:53 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:53 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part20.rar First Found: 15 Aug 2003 03:09:54 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:54 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part21.rar First Found: 15 Aug 2003 03:09:55 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:55 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part22.rar First Found: 15 Aug 2003 03:09:57 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:57 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part23.rar First Found: 15 Aug 2003 03:09:58 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:58 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part24.rar First Found: 15 Aug 2003 03:09:59 EDT (GMT -0400) Last Found: 15 Aug 2003 03:09:59 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part25.rar First Found: 15 Aug 2003 03:10:1 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:1 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part26.rar First Found: 15 Aug 2003 03:10:2 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:2 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part27.rar First Found: 15 Aug 2003 03:10:4 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:4 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part28.rar First Found: 15 Aug 2003 03:10:5 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:5 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part29.rar First Found: 15 Aug 2003 03:10:6 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:6 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part30.rar First Found: 15 Aug 2003 03:10:8 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:8 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part31.rar First Found: 15 Aug 2003 03:10:9 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:9 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part32.rar First Found: 15 Aug 2003 03:10:10 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:10 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part33.rar First Found: 15 Aug 2003 03:10:12 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:12 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Roller Coaster Tycoon 2
Filepath: \GAMES\ROLLER_COASTER_TYCOON_2\
Filename: rollercoastertycoon2.part34.rar First Found: 15 Aug 2003 03:10:13 EDT (GMT -0400) Last Found: 15 Aug 2003 03:10:13 EDT (GMT -0400)
Filesize: 9,871k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Monopoly Tycoon
Filepath: \GAMES\MONOPOLY TYCOON\
Filename: monopoly tycoon.part1.rar
First Found: 15 Aug 2003 03:24:2 EDT (GMT -0400) Last Found: 15 Aug 2003 03:24:2 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Monopoly Tycoon
Filepath: \GAMES\MONOPOLY TYCOON\
Filename: monopoly tycoon.part2.rar
First Found: 15 Aug 2003 03:24:4 EDT (GMT -0400) Last Found: 15 Aug 2003 03:24:4 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Mo
nopoly Tycoon
Filepath: \GAMES\MONOPOLY TYCOON\
Filename: monopoly tycoon.part3.rar
First Found: 15 Aug 2003 03:24:5 EDT (GMT -0400) Last Found: 15 Aug 2003 03:24:5 EDT (GMT -0400)
Filesize: 14,643k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Infringing Work: Monopoly Tycoon
Filepath: \GAMES\MONOPOLY TYCOON\
Filename: monopoly tycoon.part4.rar
First Found: 15 Aug 2003 03:24:7 EDT (GMT -0400) Last Found: 15 Aug 2003 03:24:7 EDT (GMT -0400)
Filesize: 8,253k
IP Address: [Private]
IP Port: 6646
Network: NewNet
Protocol: IRC
Username: gpc

Note: The information transmitted in this Notice is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, reproduction, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the material from all computers.

FAQ: Questions and Answers

[back to notice text]

Question: Why are copyright holders concerned about piracy?

Answer: Free speech is protected by the U.S. Constitution but so are property rights. Copyright law provides incentives for creating. One of the incentives for creating software, music, literature and other works is being able to reap the financial benefits as the creator. Illegitimate distribution of copies may prevent the copyright holder from benefiting from the sale of legitimate copies of the product. The theory is that significantly fewer people would buy copies from the copyright holder if other copies were available cheaper or for free.

[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 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 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)]

[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 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 is the Digital Millennium Copyright Act?

[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 defines a service provider under Section 512 of the Digital Millennium Copyright Act (DMCA)?

Answer: A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites. In A&M Records, Inc. v. Napster Inc., the court refused to extend the safe harbor provisions to the Napster software program and service, leaving open the question of whether peer-to-peer networks also qualify for safe harbor protection under Section 512.

There are four major categories of network systems offered by service providers that qualify for protection under the safe harbor provisions:

Conduit Communications include the transmission and routing of information, such as an email or Internet service provider, which store the material only temporarily on their networks. [Sec. 512(a)]
System Caching refers to the temporary copies of data that are made by service providers in providing the various services that require such copying in order to transfer data. [Sec. 512(b)]
Storage Systems refers to services which allow users to store information on their networks, such as a web hosting service or a chat room. [Sec. 512(c)]
Information Location Tools refer to services such as search engines, directories, or pages of recommended web sites which provide links to the allegedly infringing material. [Sec. 512(d)]

[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 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 counter-notice and put-back procedures?

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)]

Topic maintained by Stanford Center for Internet & Society