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us digital millennium copyright act 1998

Indiana University Indiana University Indiana University Knowledge Base   Menu Home Menu About us What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA) is legislation enacted by the United States Congress in October 1 kpmfzlsu. moncler jacket mens black998 that made major changes to the US Copyright Act. These changes were necessary in part to bring US copyright law into compliance with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances Phonograms Treaty. The DMCA also strengthened the legal protection of intellectual property rights in the wake of emerging new information communication technologies, i.e., the Internet.

The DMCA has five titles, or sections, with Title II having the most immediate impact on the Indiana University community. Title II outlines certain legal duties with which Online Service Providers (OSPs) must comply in order to limit their legal liabilities in the event a user of their service violates copyright laws. An OSP is defined as "an entity offering the transmission, routing, or providing of connections for digital online communications". For purposes of the DMCA, IU is regarded as an OSP for users of the IU information technology infrastructure.

According to the DMCA, an OSP is required to register an official agent with the US Copyright Office. This agent is the designated official to be notified by a copyright holder in the event of an alleged copyright infringement by anyone whose OSP is IU. Sara Chambers of the Indiana University Information Policy Office (UIPO) is the registered DMCA agent for IU.

The OSP is obligated to provide all users with reasonable access to information about the OSP's policies and standard procedures for dealing with copyright infringement notifications. The OSP is also obligated to inform users when their accounts and services will be terminated due to repeated violation of copyright or other intellectual property laws. For information on IU's procedures, see Copyright Infringement Incident Resolution.

The copyright owner can choose to either send complaints through the OSP for action, or serve legal notice to the infringer directly. Pleading a lack of knowledge about copyright infringement laws will not excuse the user from legal consequences. It is the user's responsibility to be aware of these legal consequences. For this reason, IU strongly encourages users to educate themselves about the current state of copyright law as it applies to file sharing over the Internet, and to keep up to date on changes to copyright legislation. For more, see What happens if I receive a copyright infringement notice, and how can I avoid it?

For more about file sharing, see the UIPO's File Sharing & Copyright.

Related documents Posting copyrighted materials online What is the No Electronic Theft Act?

This is document alik in the Knowledge Base. Last modified on 2017-01-09 14:52:08 .

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us digital millennium copyright act 1998
The court found that authority of DVD purchasers to access their own DVDs did not protect 321 Studios and rejected constitutional challenges based on the First Amendment and Copyright and Commerce Clauses. See also Paramount Pictures, Corp. v. 321 Studios , No. 03-CV-8970 (RO), slip op. (S.D.N.Y. Mar. 3, 2004) (injunction against manufacturing or distributing DVD-copying software). Pearl Invs., LLC v. Standard I/O, Inc. , 257 F.Supp.2d 326 (D.Me. 2003). Pearl Investments (“Pearl”), a developer of automated stock-trading computer systems, sued Standard I/O (“Standard”), a custom software company, and its owner (collectively called “defendants”). One of Pearl’s assertions was that defendants violated the DMCA by circumventing the protections of Pearl's password-protected, encrypted virtual private network (“VPN”) to gain unauthorized access to information that included Pearl's copyrighted software. Defendants sought summary judgment (“S/J”) on the DMCA claim. The District Court held, inter alia , that, as a matter of first impression, Pearl’s VPN was protected by DMCA's anti-circumvention provision because the “VPN, as described by Pearl, squarely fits the definition of ‘a technological protection measure put in place by a copyright owner to control access to a copyrighted work.’” Id. at 350. The court granted Standard’s S/J motion on the DMCA claim but not its owner’s because “the conduct in issue is that of Chunn [Standard’s owner], qua individual, and that Pearl's evidence and arguments fall short of creating a triable issue as to Standard's liability.” Id. at 349. I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc. , 307 F.Supp.2d 521 (S.D.N.Y. 2004). I.M.S. Inquiry Management Systems, Ltd., (“plaintiff”), a provider of advertising tracking services, sued Berkshire Information Systems, Inc., (“defendant”), a competitor, alleging copyright violations through unauthorized use of plaintiff's computer system and its contents. Defendant obtained and used a password issued by plaintiff for tracking advertising information and allegedly copied features of plaintiff's service in developing its competitive service. The court held that defendant “did not ‘circumvent’ technological measure[s] that effectively controlled access to copyrighted work, in violation of Digital Millennium Copyright Act (DMCA)." Id. at 521. The court stated that DMCA required defendant to avoid or bypass protective technological measures. Davidson & Associates v. Jung , 422 F.3d 630 (8th Cir. 2005). Plaintiff-appellees Davidson & Associates (“plaintiffs”), owners of copyrights in computer game and online gaming software sued creators of an alternative online service for circumvention of copyright protection system, trafficking in circumvention technology, and breach of contract. Plaintiffs created Battle.net, “a free service that allows owners of [plaintiffs’] games to play each other on their personal computers via the Internet.” Id. at 633. Defendant-appellants Jung et al. (“defendants”) created bnetd.org, an online service that “attempted to mirror all of the user-visible features of Battle.net” and allowed users to access the online gaming mode without the need for plaintiffs’ encoded identification key. The court held that defendants' development of the alternative service violated DMCA's anti-circumvention and anti-trafficking provisions. Chamberlain Group, Inc. v. Skylink Techs., Inc. , 381 F.3d 1178 (Fed. Cir. 2005). Court affirmed summary judgment for Defendant on other grounds, finding that in order for a plaintiff to bring a successful claim under Section 1201, it needed to show that the act of circumvention or device that circumvented the copy-protection technology at issue also "facilitates infringing a right protected by the Copyright Act" and thus creates a nexus between the circumvention and copyright protection. Since access to the garage door opening software in the instant case did not facilitate infringement of the software in any way, no claim under Section 1201 could stand. Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc. , 421 F.3d 1307 (Fed. Cir. 2005). The Federal Circuit affirmed its holding in Chamberlain that any act of circumvention or circumvention device must facilitate infringement of a protected right under the Copyright Act in order for Section 1201 to be violated. Finding that Section 117 protected Defendants' actions from any claim of infringement, the Court reversed the preliminary injunction granted by the court below. On summary judgment, the district court dismissed plaintiff's DMCA claim, noting that it had not shown any evidence of the alleged circumvention facilitating infringement. It also found that under a theory similar to that in the Lexmark case, much of the software allegedly protected by the technological measure was "freely available" in an unrestricted format on the hard drive and floppy disks that the Plaintiff provided to all its customers. Finally, the court distinguished this case from the Davidson case by noting that in that case, the copyrighted works were "not freely available," even to purchasers of the product. Egilman v. Keller & Heckman, LLP , 401 F.Supp.2d 105 (D.D.C. 2005). The court cited with approval I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc. , 307 F.Supp.2d 521 (S.D.N.Y. 2004), holding that defendants’ use of “a username/password combination as intended--by entering a valid username and password, albeit without authorization--does not constitute circumvention under the DMCA.” Id. at 113. Auto Inspection Services, Inc. v. Flint Auto Auction, Inc. , 2006 WL 3500868 (E.D. Mich. 2006). Plaintiff sought a preliminary injunction against defendants for violation of the DCMA concerning plaintiff’s automotive inspection program. The court found that plaintiff failed to demonstrate that defendant circumvented a technological measure that controlled access to plaintiff’s source code and thus dissolved a temporary restraining order against defendant and denied plaintiff’s motion for preliminary injunction. Webcasting

The Digital Millenium Copyright Act sets a statutory procedure for obtaining a license for webcasts, 17 U.S.C. §114(d)(2), with a lengthy list of requirements to qualify for the statutory license for webcasting. 17 U.S.C. §114(d)(2)(A); (d)(2)(C). The requirements include:

The payment of royalties as set by the negotiated or statutory rate; A webcaster may not play in any three-hour period (1) more than three songs from a particular album, including no more than two consecutively, or (2) four songs by a particular artist or from a boxed set, including no more than three consecutively. This limit is called the "sound recording performance complement;" Prior announcements of when a song will be played are not permitted; Programs that are posted on a website for listeners to hear repeatedly on-demand may not be less than five hours in duration; Looped or continuous programs may not be less than three hours in duration; When performing a sound recording, a webcaster must identify the sound recording, the album, and the featured artist, if receivers of the service are capable of displaying this information; A webcaster may not perform a sound recording in a way that falsely suggests a connection between the copyright owner or recording artist and a particular product or service; and A webcaster must accommodate and cooperate with certain technical copyright protection measures. Vessel Hull Design Protection

Listed for completeness, the Vessel Hull Design Protection Act provides sui generis protection for vessel hulls (overriding the result of Bonito Boats v. Thunder Craft Boats , 489 U.S. 141 (1989)). See http://www.copyright.gov/reports/vhdpa-report.pdf

Chapter 3 - Copyright General · Rights Acquisition · Infringement Issues · Digital Millennium Copyright Act (DMCA) · Non-Preemptable Common Law Claims

Retrieved from " https://ilt./index.php?title=Copyright:_Digital_Millennium_Copyright_Act&oldid=3848 " Categories : DMCA Articles needing updating

The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider's designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).

In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys' fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)).

Limitation for Information Location Tools

Section 512(d) relates to hyperlinks online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:

The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks. If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity. Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material.

These are essentially the same conditions that apply under the previous limitation, with some differences in the notification requirements. The provisions establishing safeguards against the possibility of erroneous or fraudulent notifications, as discussed above, as well as those protecting the provider against claims based on having taken down the material apply to this limitation. (Sections 512(f)-(g)).

Special Rules Regarding Liability of Nonprofit Educational Institutions

Section 512(e) determines when the actions or knowledge of a faculty member or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a "person other than the provider," so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met

the faculty member or graduate student's infringing activities do not involve providing online access to course materials that were required or recommended during the past three years; the institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing, and the institution provides all of its users with informational materials describing and promoting compliance with copyright law. Title III: Computer Maintenance or Repair

Title III expands the existing exemption relating to computer programs in section 117 of the Copyright Act, which allows the owner of a copy of a program to make reproductions or adaptations when necessary to use the program in conjunction with a computer. The amendment permits the owner or lessee of a computer to make or authorize the making of a copy of a computer program in the course of maintaining or repairing that computer. The exemption only permits a copy that is made automatically when a computer is activated, and only if the computer already lawfully contains an authorized copy of the program The new copy cannot be used in any other manner and must be destroyed immediately after the maintenance or repair is completed.

Title IV. Miscellaneous Provisions Clarification of the Authority of the Copyright Office

Section 401(b), adds language to section 701 of the Copyright Act confirming the Copyright Office's authority to continue to perform the policy and international functions that it has carried out for decade's under its existing general authority.

Ephemeral Recordings for Broadcasters

Section 112 of the Copyright Act grants an exemption for the making of "ephemeral recordings." These are recordings made in order to facilitate a transmission. Under this exemption, for example, a radio station can record a set of songs and broadcast from the new recording rather than from the original CDs (which would have to be changed "on the fly" during the course of a broadcast).

As it existed prior to enactment of the DMCA section 112 permitted a transmitting organization to make and retain for up to six months (hence the term "ephemeral") no more than one copy of a work if it was entitled to transmit a public performance or display of the work either under a license or by virtue of the fact that there is no general public performance right in sound recordings (as distinguished from musical works).

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) created, for the first time in US. copyright law, a limited public performance right in sound recordings. The right only covers public performances by means of digital transmission and is subject to an exemption for digital broadcasts (i.e., transmissions by FCC licensed terrestrial broadcast stations) and a statutory license for certain subscription transmissions that are not made on demand (i.e., in response to the specific request of a recipient)

Section 402 of the DMCA expands the section 112 exemption to include recordings that are made to facilitate the digital transmission of a sound recording where the transmission is made under the DPRA's exemption for digital broadcasts or statutory license. As amended section 112 also permits in some circumstances the circumvention of access control technologies in order to enable an organization to make an ephemeral recording.

Distance Education Study

In the course of consideration of the DMCA, legislators expressed an interest in amending the Copyright Act to promote distance education, possibly through an expansion of the existing exception for instructional broadcasting in section 110(2).Section 403 of the DMCA directs the ' e Copyright Office to consult with affected parties and make recommendations to Congress on how to promote distance education through digital technologies. The Office must report to Congress within six months of enactment.

The Copyright Office is directed to consider the following issues:

The need for a new exemption; Categories of works to be included in any exemption; Appropriate quantitative limitations on the portions of works that may be used under any exemption; Which parties should be eligible for any exemption; Which parties should be eligible recipients of distance education material under any exemption; The extent to which use of technological protection measures should be mandated as a condition of eligibility for any exemption; The extent to which the availability of licenses should be considered in assessing eligibility for any exemption; and Other issues as appropriate. Exemption for Nonprofit Libraries and Archives

Section 404 of the DMCA amends the exemption for nonprofit libraries and archives in section 108 of the Copyright Act to accommodate digital technologies and evolving preservation practices. Prior to enactment of the DMCA, section 108 permitted such libraries and archives to make a single facsimile (Le., not digital) copy of a work for purposes of preservation or interlibrary loan. As amended, section 108 permits up to three copies, which may be digital, provided that digital copies are not made available to the public outside the library premises. In addition, the amended section permits such a library or archive to copy a work into a new format if the original format becomes obsolete- that 'is, the machine or device used to render the work perceptible is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Webcasting Amendments to the Digital Performance Right in Sound Recordings

As discussed above, in 1995 Congress enacted the DPRA creating a performance right in sound recordings that is limited to digital transmissions Under that legislation, three categories of digital transmissions were addressed: broadcast transmissions, which were exempted from. the performance right; subscription transmissions, which were generally subject to a statutory license; and on-demand transmissions, which were subject to the full exclusive right. Broadcast transmissions under the DPRA are transmissions made by FCC-licensed terrestrial broadcast stations.

In the past several years, a number of entities have begun making digital transmissions of sound recordings over the Internet using streaming audio technologies. This activity does not fall squarely within any of the three categories that were addressed in the DPRA. Section 405 of the DMCA amends the DPRA, expanding the statutory license for subscription transmissions to include webcasting as a new category of "eligible nonsubscription transmissions."

In addition to expanding the scope of the statutory license, the DMCA revises the criteria that any entity must meet in order to be eligible for the license (other than those who are subject to a grandfather clause, leaving the existing criteria intact). It revises the considerations for setting rates as well (again, subject to a grandfather clause), directing arbitration panels convened under the law to set the royalty rates at fair market value.

This provision of the DMCA also creates a new statutory license for making ephemeral recordings. As indicated above, section 402 of the DMCA amends section 112 of the Copyright Act to permit the making of a single ephemeral recording to facilitate the digital transmission of sound recording that is permitted either under the DPRA's broadcasting exemption or statutory license. Transmitting organizations that wish to make more than the single ephemeral recording of a sound recording that is permitted under the outright exemption in section 112 are now eligible for a statutory license to make such additional ephemeral recordings. In addition, the new statutory license applies to the making of ephemeral recordings by transmitting organizations other than broadcasters who are exempt from the digital performance right, who are not covered by the expanded exemption in section 402 of the DMCA.

Assumption of Contractual Obligations upon Transfers of Rights in Motion Pictures

Section 416 addresses concerns about the ability of writers, directors and screen actors to obtain residual payments for the exploitation of motion pictures in situations where the producer is no longer able to make these payments. "Me guilds' collective bargaining agreements currently require producers to obtain assumption agreements from distributors in certain circumstances, by which the distributor assumes the producer's obligation to make such residual payments. Some production companies apparently do not always do so, leaving the guilds without contractual privity enabling them to seek recourse from the distributor.

The DMCA adds a new chapter to Title 28of the US. Code that imposes on transferees those obligations to make residual payments that the producer would be required to have the transferee assume under the relevant collective bargaining agreement. The obligations attach only if the distributor knew or had reason to know that the motion picture was produced subject to a collective bargaining agreement or in. the event of a court order confirming an arbitration award under the collective bargaining agreement that the producer cannot satisfy within ninety days. There are two classes of transfers that are excluded from the scope of this provision, The first is transfers limited to public performance rights, and the second is grants of security interests, along with any subsequent transfers from the security interest holder.

The provision also directs the Comptroller General in consultation with the Register of Copyrights, to conduct a study on the conditions in the motion picture industry that gave rise to this provision, and the impact of the provision on the industry. The study is due two years from enactment.

Title V: Protection of Certain Original Designs

Title V of the DMCA, entitled the Vessel Hull Design Protection Act (VHDPA), adds a new chapter 13 to Title 17 of the US. Code. It creates a new system for protecting original designs of certain useful articles that make the article attractive or distinctive in appearance. For purposes of the VHDPA, "useful articles" are limited to the hulls (including the decks) of vessels no longer than 200 feet.

A design is protected under the VHDPA as soon as a useful article embodying the design is made public or a registration for the design is published. Protection is lost if an application for registration is not made within two years after a design is first made public, but a design is not registrable if it has been made public more than one year before the date of the application for registration. Once registered, protection continues for ten years from the date protection begins

The VHDPA is subject to a legislative sunset: the Act expires two years from enactment (October 28, 2000). The Copyright Office is directed to conduct two joint studies with the Patent and Trademark Office- the first by October 28, 1999 and the second by October 28, 2000-- evaluating the impact of the VHDPA.

Effective Dates

Most provisions of the DMCA are effective on the date of enactment. There are, however, several exceptions. The technical amendments in Title I that relate to eligibility of works for protection under U.S. copyright law by virtue of the new WIPO treaties do not take effect until the relevant treaty comes into force.

Similarly, restoration of copyright protection for such works does not become effective until the relevant treaty comes into force. The prohibition on the act of circumvention of access control measures does not take effect until two years from enactment (October 28, 2000).

1 Pub. L No. 105-304,112 Stat. 2860 (Oct. 28,1998).

2 "Copying" is used in this context as shorthand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in this second category.

3 The Fairness in Musical Licensing Act, Title II of Pub. L. No. 105-298, 112 Stat. 2827, 2830-34 (Oct. 27, 1998) also a" a new section 512 to the Copyright Act. Ibis duplication of section numbers will need to be corrected in a technical amendments bill.






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