IP: DMCA: Reference

Laws

• Public Law No. 105-304, 112 Stat. 2860 (codified throughout United States Code title 17) October 28, 1998 DMCA enacted
  • Other provisions of the DMCA deal with such topics as vessel hull design, distance education, and copies of programs related to computer maintenance.
• Digital Millennium Copyright Act (PDF)
• U.S. Copyright Office Summary of the Digital Millennium Copyright Act of 1998
• HRRC DMCA Legislative History
• The WIPO Copyright Treaty - Geneva - December 2-20, 1996
• See also the Fraudulent Online Identity Sanctions Act (criminalizing false WHOIS records)

Federal Activity

• Testimony of Mitch Bainwol, "Privacy and Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry", Sen. Committee on Homeland Security and Governmental Affairs, Hearing, Sept. 30, 2003
• "Piracy of Intellectual Property on Peer-to-Peer Networks" before the House Subcomm. on Courts, the Internet, and Intellectual Property, of the Comm. on the Judiciary, 107th Cong. Sept. 26, 2002
  • Testimony of Gigi Sohn
• Apr 25-26 2002 Beyond the DMCA: A Copyright Conference Washington, D.C.
• Public Hearing to Be Held Nov. 29, 2000 Fed Reg Notice
• Interim regulations (pdf)

Links

• Sample exchange of notices between parties.
  • Verizon's DMCA Notice

Reports

Congress mandated that the Library of Congress report to Congress on the implementation of the DMCA.

• Report to Congress on AntiCircumvention Provisions.
• U.S. Copyright Office, Report on Distance Education (May 1999) (Pursuant to Section 403 of the Digital Millennium Copyright Act)  “Section 403 requires that the Copyright Office consult with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, and thereafter submit to Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the interests of users. Such recommendations may include legislative changes. Section 403 requires the Copyright Office to submit its recommendations to Congress no later than April 28, 1999." LOC.
• Library of Congress and the Department of Commerce, Digital Millennium Copyright Act, Section 104 Joint Report to Congress (April 2000). Evaluated the effects of the DMCA and the development of E-commerce on first sale doctrine (the right of an owner of a copy of a work to sell that copy), the creation of certain temporary incidental copies (ie, RAM copies), and the archival copying exemption. This Report concluded that DMCA has not had a "significant effect" on first sale doctrine or archival copying. However, also recommended that Congress removing any potential liability for temporary incidental copies created in the process of streaming media.
  • NTIA Request for Comments  on the effects of the Digital Millennium Copyright Act and the development of electronic commerce on the operation of sections 109 and 117 of title 17, United States Code. Comments must be received by August 4, 2000. Reply comments must be received by September 5, 2000.
• Joint Study Required by Section 104 of the Digital Millennium Copyright Act LOC

Papers

• Laura Quilter and Marjorie Heins, INTELLECTUAL PROPERTY AND FREE SPEECH IN THE ONLINE WORLD: How Educational Institutions and Other Online Service Providers Are Coping with Cease and Desist Letters and Takedown Notices, Brennan Center for Justice 4/27/2007
• Laura Quilter and Marjorie Heins, Intellectual Property and Free Speech in the Online World: How Educational Institutions and Other Online Service Providers Are Coping with Cease and Desist Letters and Takedown Notices, Brennan Center for Justice NYU School of Law
• Jennifer Urban and Laura Quilter, "Efficient Process or 'Chilling Effects'? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act," 22 Santa Clara Comp. & High Tech L.J. 621 (2006)
• Book: Francois Leveque & Howard Shelanski, eds, Copyright and the DMCA: Market Locks and Technological Contracts , SSRN 4/11/2005
• Cassandra Imfeld and Victoria Smith Ekstrand, "The Music Industry and the Legislative Development of the Digital Millennium Copyright Act's Online Service Provider Provision," 10 Comm. L. & Pol'y 291 (2005)
• Rethinking the DMCA, Public Knowledge 4/11/2005
• Sonia Katyal, "The New Surveillance," 54 Case Western L.Rev. 297 (2004)
• On the Technical Protection of Copyright: The Digital Millennium Copyright Act, the European Community Copyright Directive and Their Anticircumvention Provisions, IJCLP 1/21/03
• Jennifer Bretan, Harboring Doubts About the Efficacy of § 512 Immunity Under the DMCA, 18 Berkeley Tech. L.J. 43 (2003).
• Electronic Frontier Foundation, Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands, Sept. 26, 2003
• I. Trotter Hardy, Criminal Copyright Infringement, 11 Wm. & Mary Bill Rts. J. 305 (2002)
• EFF Whitepaper: Unintended Consequences: Five Years under the DMCA
• EFF Whitepaper: Unintended Consequences Three Years Under the DMCA
• Back from the Future: A Proleptic Review of the Digital Millenium Copyright Act by David Nimmer BTLJ 2001
• Burk, Anti-Circumvention Misuse, TPRC 9/18/02
• Arnold P. Lutzker, The Digital Millennium Copyright Act: Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers, MLANET (2001)
• SmartFilter - I've Got A Little List An anticensorware investigation by Seth Finkelstein Dec 2000 (commenting on how the DMCA frustrates monitoring of censorship software and filters)
• Arnold P. Lutzker, The Digital Millennium Copyright Act: Highlights of New Copyright Provision Establishing Limitation of Liability for Online Service Providers, MLANET (2001)
• EFF Whitepaper: Unintended Consequences Three Years Under the DMCA
• Back from the Future: A Proleptic Review of the Digital Millenium Copyright Act by David Nimmer BTLJ 2001

Caselaw

• Rossi v. MPAA, No. 03-16034, Slip Op. 16421, 16427 (9th Cir. Dec. 2004)
  • (The DMCA "intended to 'balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse'")
  • (with regard to liability for wrongful notice, "A copyright owner cannot be liable simply because an unknowning mistake is made, even if the copyright owner acted unreasonably in making the mistake ... Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner")
• Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (DMCA was designed to revise intellectual property in the digital age)
• In Re Aimster Copyright Litigation, 334 F.3d 643, 655 (7th Cir. 2003)
  • DMCA was designed to revise intellectual property in the digital age.
  • Service failed to have a Sec. 512(i) policy for dealing with repeat offenders
• RIAA v. Verizon Internet Serv., 351 F.3d 1229, 1234 (DC Cir. 2003) (a service provider must “respond[] expeditiously to remove, or disable access to, the material that is claimed to be infringing.”).
• ALS Scan Inc. v. Remarq Communities Inc., 239 F.3d 619 (4th Cir. 2001) Plaintiff's defective notice made defendant aware that third party's use of system was infringing, thereby eliminating service providers immunity unless it acted.

District Court

• Lenz v Universal Music Corp., Case No 07-2783 (Aug 20, 2008) (copyright owner when issuing DMCA takedown notice must consider whether use falls under Fair Use - in this case Lenz had video taped her kids dancing in the kitching to the music of Prince where the music was garbled and of poor sound quality and the sample lasted about 20 seconds - for this, Universal issued a takedown notice to YouTube).
• Parker v. Google, Inc., 2006 WL 680916, (ED Pa., March 10, 2006) (Google not liable for copyright infringement where automatically and temporarily stored data and lacked the volition element to copyright infringement).
• Corbis Corp. v. Amazon.com, No. CV03-1415L, slip at 13 (WDWa 2004) (finding that Amazon.com operated a web service hosting third party ecommerce retail enterprises)
• Online Policy Group v. Diebold Inc (ND Cal 2004)
  • Students reportedly posted emails that discussed defects with machines; Diebold sent take-down notices and the material was removed. Court found that these were wrongful notices states "No reasonable copyright holder could have believe that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by copyright... The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA's safe harbor provisions - which were deisgned to protect ISPs, not copyright holders- as a sword to suppress publication of embarrassing content rather than as a shiled to protect its intellectual property."
• Hendrickson v. Amazon.com, 298 F.Supp.2d 914, 915 (CD Cal. 2003) (finding that Amazon.com is a service provider for the purposes of the DMCA).
• Harlan Ellison v. AOL and Stephen Robertson, 189 F.Supp.2d 1051 (CDCa Mar. 12, 2002):
  • Where AOL hosted USENET groups, and where a third party posted an allegedly pirated copy of a book to a USENET group, AOL's passive role as a conduit for USENET was insufficient to establish a claim of direct infringement against AOL.
  • Where AOL hosted USENET groups, a third party posted an allegedly pirated copy of a book to a USENET group, and AOL had no control, supervision or financial interest in the posting of the book, AOL could not be held vicariously liable for the third party's posting of the book.
  • "One who, with knowledge of the infringing activity, induces, causes or material contributes to the infringing conduct of another, may be liable as a 'contributory infringer.'"
  • Finding AOL protected from liability where defendant Robertson allegedly posted copyright protected material of plaintiff to a USENET newsgroup carried by AOL.
  • A Court pontificated on this requirement in Harlan Ellison stated

    Subsection (i) does not require [an ISP] to actually terminate repeat infringers or even to investigate infringement in order to determine of [an ISP's] users are behind it. That is the province of subsection (c), which provides detailed requirements related to notification of infringement and the ISPs' responsibility to investigate and, in some instances, delete or block access to infringing material on their systems. Subsection (i) only requires [an ISP] to put its users on notice that they face a realistic threat of having their Internet access terminated if they repeatedly violate intellectual property rights.

  • Transmission: AOL provided access to USENET groups, a third party posted an allegedly pirated copy of a book to alt.binaries.e-books, and the author of the book sued both AOL and the third party. The Court held that AOL qualified for protection under Sec. 512(a) when acting merely as a transmission conduit, holding that USENET constituted "intermediate and transient storage."
• Arista Records Inc. v. MP3 Board. Inc. (SDNY 2002) (simply because notice is defective does not mean it is willfully wrongful)
• Hendrickson v. eBay, Inc., 165 F.Supp.2d 1082, 1088 (CD Cal. 2001) eBay qualifies as a DMCA service provider
• A&M Records, Inc. v. Napster, Inc., No. C 99-05183 MHP (N.D. Ca. 2000): Finding that Napster was not eligible for the protections under Section 512(a) as a service provider, noting that the copyrighted material was not transmitted through Napster's facilities.
• ReligiousTechnologyCenter v. Netcom On-line Communications Service, Inc., 907 F.Supp. 1361 (ND Cal. 1995).
  • Prior to the DMCA and without its defenses, several courts found that ISPs would not be liable for third party content (these courts have treated ISPs much in the same way as common carriers, aka the telephone company or the postal service, who are not responsible for the content carried where they have no knowledge of the content covered
  • Court analogized a bulletin board operator to the owner of a public photocopy machine. Netcom did not have the right and ability to control infringers actions; Netcom did not benefit directly from the infringement..
• Religious Technology Center v FACTNET, 907 FS 1468 (DCO 1995) (lower court ordered ISPs equipment seized and impounded. Judge on review found that copy was not publicly available on Net, was copied onto private hard drive pursuant to fair use, and ordered all equipment restored)