Coolidge & Graves PLLC

    Business and Intellectual Property Law

The Digital Millennium Copyright Act

 Comments and Summary of Certain Provisions

Daniel S. Coolidge

The Digital Millennium Copyright Act was signed into law by President Clinton on October 28, 1998. It consists of five separate titles, comprised of:

                          I.      WIPO Treaties Implementation

                       II.      Online Copyright Infringement Liability Limitation

                     III.      Computer Maintenance or Repair Copyright Exemption

                    IV.      Miscellaneous Provisions

                       V.      Vessel Hull Design Protection Act.

The attached materials includes the entire act, a short summary of the act as contained in the conference report filed in the House October 10. 1998, and specific information provided by the copyright office concerning the designation of an agent for notification of claims infringement for purposes of taking advantage of the on-line service provider safe harbor.

This paper does not pretend to cover the entire act: many of the provisions are highly technical, or of limited interest or applicability to the intended audience of this program. Specifically, this paper does not cover the sections dealing with sound recordings and ephemeral recordings, nor the Hull Design Protection Act.

In brief outline form, some provisions of the Act provide:

1)      WIPO TREATIES IMPLEMENTATION

a)      Grants copyright protection to:

i)         sound recordings first fixed in a treaty party

ii)       pictorial, graphic or sculptural works in buildings located in the US or treaty party.

b)      Treats works first published in a non-treaty party country but published in a treaty party country within 30 days after first publication as being a treaty party published work.

c)      Protection Schemes

i)        Prohibits:

(1)   Circumvention of measures to control access to protected works (effective 2 years from enactment)

(2)   Trafficking in technology designed to circumvent access or protect rights of copyright owners. (effective immediately) Includes

(a)    Devices which are primarily designed for circumvention

(b)   have only limited commercially significant purpose other than circumvention

(c)    are marketed for the purpose of circumvention.

ii)       Study period to see who may be adversely affected in ability to make non-infringing uses

iii)     Certain exemptions:

(1)   Permitted reverse engineering

(2)   libraries and non-profits for evaluation purposes

(3)   Law enforcement and intelligence agencies

(4)   for purpose of achieving interoperability

(5)   Encryption research

(a)    to search for flaws and vulnerabilities  for purpose of advancing state of knowledge in field of encryption technology

(b)   Must have lawfully obtained the work being tested

(c)    Must make good faith effort to obtain permission for research from copyright owner

(d)   Circumvention must otherwise be permissible under the law

(e)    Courts directed to consider

(i)      Whether information derived from research was disseminated to advance knowledge of encryption or to enable infringement

(ii)    Whether the researcher engaged in legitimate study , employed, appropriately trained or experienced in the field

(iii)   Whether the researcher gives timely notice of results of research to the copyright owner

(6)   Devices whose sole purpose is to assist parents to prevent access by their children to objectionable material

(7)   For purpose of identifying and disabling personally identifying information

(a)    Exemption only available if

(i)      Notice not given

(ii)    No capability to prevent or restrict such information gathering

(iii)   Circumvention has no other effect on ability to gain access

(iv)  Q. Can someone traffic in such means legally?

d)      VCR Copy Protection

i)        Prohibits tampering with analog copy controls in VCR’s and requires incorporation of certain anti-copying technologies in new recorders

(1)   AGC (automatic gain control)

(2)   Colorstripe copy control

e)      Copyright Management Information

i)        Creates liability for tampering with, removing or providing false copyright management information (CMI) including;

(1)   Title, author and owner identification

(2)   Performer identity

(3)   In AV work- writer, performer director identity

(4)   Terms and conditions for use of work

(5)   Certain identifying numbers or hypertext links

ii)       CMI must be conveyed in connection with the work to be covered

iii)     Certain exemptions for broadcast entities

(1)   If not technically feasible to avoid violation

(2)   Complying would create undue financial hardship

(3)   Transmission of CMI would create perceptible visual or aural degredation of a digital signal

f)        Technical amendments

i)        See above

2)      ONLINE SERVICE PROVIDER LIABILITY LIMITATION

Provides safe harbor against infringement liability for online service providers (“OSP) if certain conditions met

a)      Service provider defined broadly:

i)        “entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification of the content of the material sent or received.”

ii)      Includes “a provider of online services or network access, or the operator of facilities therefore…”

b)      Conditions for eligibility

i)        Termination Policy

(1)   Must adopt and implement a policy and inform users providing for termination of repeat offenders

ii)      Accommodation of Certain Technical Measures

(1)   Must accommodate and not interfere with “standard” technical measures of copyright owners such as digital watermarks or the like.

(2)   To be “standard” measure must

(a)   Be adopted by a broad consensus of copyright owners

(b)   Be available to anyone on reasonable, non-discriminatory terms

(c)    Not impose substantial costs or burdens on OSP

iii)    Not Required to Monitor

(1)   No obligation to affirmatively seek out copyright violations

(2)   No requirement to monitor activities

(3)   No requirement to undertake activities that would violate other laws, such as Electronic Communications Privacy Act

c)      Safe Harbors

i)        Storage and Information Locating Tools Safe Harbor

(1)   e.g. material at another site pointed to by a search engine

(2)   OSP must not have actual knowledge that material on its site is infringing

(3)   OSP can’t be actually aware of facts or circumstances “from which the infringing activity is apparent”

(4)   OSP must expeditiously act to remove or disable access to material it becomes aware is infringing

(5)   The OSP must not receive a financial benefit directly attributable to the infringing activity, in cases in which the OSP has the right and ability to control such activity

(6)   Upon notification of claimed infringement, OSP must respond expeditiously to remove or disable access to material claimed to be infringing

(7)   Must have a designated agent for notification of claimed infringement

(a)    Deposit notice of agent designation with Register of Copyrights

(i)      Notice will be kept available on-line by Register

(ii)    Notice will be available for inspection in hard copy

(iii)   There may be a fee (currently $20)

(iv)  Elements of Notice:

1.      Name, address, phone number and email address of agent

2.      Other contact information Register of Copyright deems appropriate

3.      See attached materials for samples forms and interim regulations

ii)       System Caching Safe Harbor

e.g. OSP makes a temporary copy of certain Internet material to make access faster to users

(1)   Applies to material

(a)    Originally placed online by someone other than the OSP

(b)   Transmitted by the originator through the OSP’s system to a third party at such third party’s request

(2)   Requirements for qualification for exemption from liability

(a)    Storage must be by means of an automated process and provided to requesters without modification from manner it was provided by originator

(b)   OSP must comply with rules specified by the originator for refreshing the cache using industry standard protocols provided that these are not imposed to prevent or unreasonably impair system caching

(c)    OSP does not interfere with technology associated with cached material that returns certain information to the originator provided this doesn’t significantly interfere with performance of OSP’s service

(d)   If the originator required certain conditions for access (such as password, payment of fees etc.) the OSP only allows access to cached material by subsequent users who have met such conditions

(e)    If the original material from which cached copy was made has been removed or access blocked and copyright owner or agent gives notice (see above) OSP must expeditiously remove or block access to infringing material.

iii)     Transmission and Routing Safe Harbor

(1)   Applies to conduits

(2)   Elements for Qualification

(a)    Transmission must be initiated by someone other than OSP

(b)   Activities must be automatic and not involve selection by OSP

(c)    OSP must not select recipients of material

(d)   OSP may not make copies available to anyone other than intended recipient and must not keep copy any longer than reasonably necessary for OSP’s normal service activities

d)      Scope of Safe harbors

i)        Exempt from monetary damages for claims of copyright infringement based upon exempt activity

ii)       Limited injunctive relief

(1)   May require prohibiting access by a named user (i.e. termination of privileges)

(2)   May prohibit OSP from providing access to infringing material at particular online sites on the OSP’s system

(3)   Regarding transmission and routing, may require steps to block access to to identified online locations outside the U.S.

(4)   Such other relief as is least burdensome necessary to prevent infringement of specified material at particular online site. 

e)      Notice and Take Down Requirements

i)        Notification of Claimed Infringement

(1)   Required elements of notification

(a)    Physical or electronic signature of peers authorized to act on behalf of OSP

(b)   Identification of copyrighted work claimed to have been infringed

(c)    Identification of material claimed to be infringing that is to be removed in sufficient detail to permit the OSP to locate the material

(d)   Sufficient information to allow the OSP to contact the complaining party, such as address, phone number, and, if available, an email address.

(e)    Statement that complaining party has good faith belief the material complained of is not authorized by copyright owner or the law

(f)     A statement that the information in the notice is accurate, and that , under penalties of perjury, the notice giver is authorized to act on behalf of the owner of the exclusive rights allegedly being infringed.

(2)   Failure to substantially comply with required elements will result in such notice not being considered in determining actual knowledge of OSP

(3)   If notice does identify the work, infringing material and how to contact the notice giver, this exception applies only of the OSP makes attempt to contact notice giver or other reasonable steps to assist in obtaining a compliant notice.

(4)   OSP not liable for good faith disabling of access or removal in response to infringement notification (but see counter notification procedure below)

(5)   If OSP has blocked or removed material in response to an infringement notice, it must also notify the offending user that the OSP has removed or blocked the matrerial

(a)     

ii)       Limitation on OSP Liability in response to Notice of Infringement

(1)   If OSP has blocked or removed material in response to an infringement notice, to be protected by liability exemption for such removal it must also

(a)    notify the offending user that the OSP has removed or blocked the material

(b)   Upon receipt of a counter notification (see below) inform the infringement notice giver that it will replace the removed material or stop blocking access in ten business days

(c)    Replace the removed material or stop blocking access in not less than ten nor more than fourteen days following receipt of the counter notice unless the OSP receives notice from the original infringement notice giver that it has filed an action seeking court order to restrain the subscriber from engaging in the alleged infringing activity

iii)     Counter Notification

(1)   User may send a counter notification stating that removal was result of mistake or misidentification

(a)    Contents of Counter Notification

(i)      Physical or electronic signature of subscriber

(ii)    Identification of material that has been removed or access disabled and where it was before such action taken

(iii)   Statement (under penalties of perjury) that subscriber has good faith belief that material removed as result of mistake or misidentification of material to be removed

(iv)  The subscriber’s name, address, phone number

(v)    Consent to jurisdiction of Federal District Court where subscriber’s address located, or, if outside U.S., and judicial district in which the OSP may be found and  statement that subscriber will accept service of process from the person providing notice of infringement

(b)   counter notification is subject to penalties for knowing and material misrepresentation)

3)      COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

a)      Independent service organizations not liable for making a copy of a computer program solely by virtue of activating a machine containing an otherwise authorized copy, if solely for purpose of maintenance or repair of the machine and:

i)        The copy is used for no other purpose and is destroyed after completing the repair

ii)       Any computer program or part thereof that is not necessary to be activated is not accessed or used other than to make such new copy by virtue of the activation of the machine