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Cloud (Digital) Millennium Copyright Act (DMCA) us digital millennium copyright act definition

Cloud (Digital) Millennium Copyright Act (DMCA)

Wikipedia Definition & Overview The Digital Millennium Copyright Act (DMCA) is an amendment to United States copyright law, passed unanimously on May 14, 1998, which criminalizes the produ ojkrvcyp. moncler kiedsction and dissemination of technology that allows users to circumvent technical copy-restriction methods. Under the Act, circumvention of a technological measure that effectively controls access to a work is illegal if done with the primary intent of violating the rights of copyright holders.


Cloud Computing, Clickwrap Agreements, and Limitation on Liability Clauses: A Perfect Storm? Recently, courts have begun to enforce limitation on liability clauses in click-wrap agreements,10 but the use of these clauses presents troubling new concerns because of the high value and volume of data stored in the cloud. By assenting to these agreements, cloud customers are clicking away more of their legal rights than they might think.

Infringers or Innovators? Examining Copyright Liability for Cloud-Based Music Locker Services Music lockers—Internet sites where users may store a copy of their music for later playback—have revolutionized the way people listen to music, allowing them to take their music with them anywhere in the world. However, rights holders are concerned that these locker services potentially infringe music copyrights when they allow their users to upload and stream music and when they use a space-saving technology called “deduplication.”

MP3tunes Scores A Victory For Cloud Locker Services Cloud-based music services can heave a sigh of relief. MP3tunes, the cloud locker service founded by Michael Robertson, scored a partial victory in the copyright litigation brought by EMI. In his August 22nd decision, Judge William H. Pauley III agreed with MP3tunes that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) protected it against many of EMI’s infringement claims.

YouTube Video – Digital Millennium Copyright Act – Exploring Fair Use Rights This video takes a glimpse at how Fair Use rights have become a heated political issue concerning creation and use of today’s media under the Digital Millennium Copyright Act of 1998. (May 2011)

us digital millennium copyright act definition

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moncler hat sale uk ... Before agreeing to include this requirement in the final legislation, the conferees assured themselves in relation to two critical issues — that these analog copy control technologies do not create ‘playability’ problems on normal consumer electronics products and that the intellectual property necessary for the operation of these technologies will be available on reasonable and non-discriminatory terms.” 24 Protection for the Integrity of Copyright Management Information The two WIPO Treaties contain substantively identical obligations to protect the integrity of copyright management information (“CMI”), i.e., information which identifies the work, the author, or the owner of rights or which specifies the terms and conditions of use. CMI also includes any identifying numbers or codes. Basic rights. The Digital Millennium Copyright Act implements the treaty obligations to protect CMI in the new Chapter 12 to title 17 U.S.C. The Act generally prohibits the knowing provision, distribution, or importation of false CMI and the intentional removal or alteration of CMI or the distribution or importation of CMI knowing that information has been altered or removed. The purpose of the CMI provisions is to facilitate widespread use of CMI by copyright owners in order to make licensing of works (or obtaining permission to use

21 Section 1201(h), 17 U.S.C. 22 Section 1201(i), 17 U.S.C. 23 DMCA Conference Report, 105-796 at 67. 24 Id. at 68. works) easier and more beneficial both to the public and copyright owners. Pursuant to the WIPO Treaties, the provisions cannot, and are not, legislated as a formality (i.e., as a condition of the exercise or enjoyment of the copyright), nor can the CMI requirements prohibit the free movement of goods. The new rights to protect the integrity of CMI systems apply both to analog and digital formats. In this respect, the DMCA exceeds the minimum treaty obligations since the WIPO Treaties require protection only for electronic rights management information. The prohibitions do not apply to “the ordinary and customary practices of broadcasters or the inadvertent omission of credits from broadcasts of audiovisual works, since such acts do not involve the provision of false CMI with the requisite 25 knowledge and intent.” Exemptions. The lawfully authorized activities of law enforcement and 26 intelligence agencies are exempt from the CMI requirements. Broadcasters, cable systems, and those who provide programming to these entities are also generally exempt from liability under the CMI provisions, if they do not intend to induce, enable, facilitate or conceal a copyright infringement. 27 The conditions for applying the limitation on liability differ depending upon whether the transmission is an analog or a digital one. In the case of an analog transmission, an eligible person will not be liable if it is not technically feasible to avoid the violation or if avoidance would create an undue financial hardship. In the case of a digital transmission, the exemption is dependent upon the status of efforts to create voluntary standards for transmission of CMI. The Act contemplates that voluntary standards will be developed. Until a standard is set, an eligible person is not liable if the transmission would cause a perceptible visual or aural degradation of the digital signal, or if the transmission would conflict with an applicable government regulation or industry standard other than CMI standards. If a voluntary CMI standard has been set, the eligible person will not be liable if the CMI was not located in accordance with the industry standard. Civil and Criminal Remedies The Digital Millennium Copyright Act establishes nearly the same civil and criminal remedies for violations of either the anticircumvention provisions of 17 U.S.C. 1201 or the CMI provisions of 17 U.S.C. 1202. Civil remedies. The civil remedies for violations of the anticircumvention and CMI provisions are found in Section 1203, 17 U.S.C. They include: injunctions,

25 Sectional Analysis of H.R. 2281, August 4, 1998, at 19. 26 Section 1202(d), 17 U.S.C. 27 Section 1202(e), 17 U.S.C. impoundment of infringing material or equipment, actual damages and any additional profits of the violator not counted as part of damages or statutory damages, at the option of the plaintiff. The statutory damages for violation of Section 1201 range from $200-$2500 per act of circumvention. For violation of the Section 1202 CMI provisions, the plaintiff may be awarded between $2500-$25,000 for each violation. If there are repeated violations within a 3-year period, the court may award triple damages. The court also has the discretion to reduce or remit damages if the violator proves, and the court finds, the offender was not aware and had no reason to believe that the law was violated. Under the same circumstances, in the case of a nonprofit library, archive, or educational institution, the court must reduce or remit damages for innocent violations. Criminal penalties. Nonprofit libraries, archives, or educational institutions are exempt from any criminal liability for violation of Sections 1201 or 1202. Other violators shall be fined no more than $500,000 or imprisoned up to 5 years, or both, for first offenses. For subsequent offenses, the maximum fines and prison time are doubled. Title I Studies or Reports Encryption research. New Section 1201(g) of Title 17 U.S.C., in addition to creating certain exemptions for encryption research from the anticircumvention provisions, also directs the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce (hereafter: the “Assistant Secretary for Comm.-Info”) to report back to the Congress on the effect 28 of the legislation on encryption research. The report, which is due 1 year after enactment, will also assess the adequacy and effectiveness of the anti-copying measures used by copyright owners. Impact on electronic commerce. Section 104 of Title I directs the Register of Copyrights and the Assistant Secretary for Comm.-Info to report back to the Congress on the effects of Title I on the development of electronic commerce and associated technologies. The report must also evaluate the DMCA’s effect on the operations of the first sale doctrine of 17 U.S.C. 109 and the computer program exemptions of 17 U.S.C. 117. This report is due within 2 years after enactment. Effective Date The amendments to title 17 U.S.C. made by Title I of the DMCA are generally effective on the date of enactment, October 28, 1998. The technical amendments relating to international treaty relationships will take effect when the United States becomes bound by the two new WIPO Treaties. The Senate on October 21, 1998 gave its consent to United States ratification of the Treaties. The instruments of ratification will be deposited with the Director General of WIPO in due course. The

28 17 U.S.C. 1201(g)(5). WIPO Treaties will not enter into force, however, until 30 States have deposited 29 instruments of accession or ratification. Online Copyright Infringement Liability Limitation — Title II The potential liability of online service and access providers (OSPs) for infringing activities of their customers was originally one of the major controversies regarding WIPO Treaties implementation. 30 The original implementation bills recommended by the Administration did not address the issue, on the theory that, since the Treaties themselves do not address who is liable for any copyright infringements, the matter could be left to judicial interpretation. That outcome was opposed by many groups including coalitions representing the OSPs, telecommunications entities, the electronics industry, and library and educational institutions. Without legislative guidance, these groups argued there would be unacceptable business uncertainty and protracted litigation to delineate who is liable for infringements by OSP customers. The issue of OSP liability was resolved by a negotiated agreement among the private sector interests most directly 31 affected by use of copyrighted works on the Internet. That agreement formed the basis for most of Title II of the DMCA. Title II of the DMCA — the “Online Copyright Infringement Liability Limitation Act” — amends Chapter 5 of the Copyright Act by adding a new section 512 relating to limitations on OSP liability for online infringements by their customers. The limitations on liability benefit persons or entities who act as online 32 service providers. The Act gives a two-part definition of the term “service provider.” With respect to digital network communications [17 U.S.C. 512(a)], a “service provider” is “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of

29 Three countries (Belarus, Indonesia, and The Republic of Moldova) have ratified the Copyright Treaty. Two countries (Belarus and The Republic of Moldova) have ratified the Performances and Phonograms Treaty. 30 This Report uses “OSP” as short-hand for persons and entities who transmit, route, provide connections, or otherwise facilitate computer network service and access for customers without initiating or altering the content of the transmission. Although OSPs are the main beneficiaries of the liability provisions in Title II of the DMCA, entities other than OSPs can claim the exemption if they meet the statutory conditions. 31 The negotiations that culminated in an agreement on OSP copyright liability on March 31, 1998 were conducted for several years under the auspices of the Senate Judiciary Committee and the Subcommittee on Courts and Intellectual Property of the House Judiciary Committee. The private sector negotiators included representatives of copyright owners and authors; the telecommunications industry, electronics industry, and computer equipment industry; and online service providers. 32 Title II of the DMCA took effect upon enactment, October 28, 1998. the user’s choosing, without modification to the content of the material as sent or 33 received.” The term service provider as used in subsections (b)-(j) and (l)-(m) of section 512 means “a provider of online services or network access, or the operator of facilities therefor,” as well as entities that meet the first part of the definition of 34 a “service provider.” The second part of the definition includes universities that act as service providers, and entities that provide Internet access, e-mail, chat room, and web page hosting services. The Digital Millennium Copyright Act basically absolves the OSPs from copyright liability when they merely act as “conduits” of information transferred over their networks, without having any control over the content of the transmission. The DMCA creates “safe harbors” from either direct, vicarious, or contributory copyright infringement when the conditions of the exemption are met. Upon receiving a notice of infringement that complies with statutory requirements, 35 an OSP is expected expeditiously to remove, disable, or block access, to the extent blocking is technologically feasible and economically reasonable. Upon receipt of a counter-notice from a provider of the blocked site, the OSP shall retain the block for 10-14 days but no longer, unless the copyright owner files suit for copyright infringement. The exemptions from liability apply both to network service transmissions and to private and real-time communications services. The Senate-House conferees reached an agreement on further limits on the liability of nonprofit educational institutions that act as service providers. Digital Network Communications An OSP is not liable for monetary relief and injunctive relief is carefully circumscribed when an OSP acts as a “mere conduit” in transmitting the copyrighted work(s). Some of the specific restrictions to qualify for this exemption are: !the transmission was initiated by someone other than the OSP; !the transmission is provided through automatic, technical processes without selection of content by the OSP; !the OSP does not select the recipients of the copyrighted material, except as an automatic response to provide service;

33 Section 512 (k)(1), title 17 U.S.C. 34 Ibid. 35 Among other requirements, the notice must be in writing, describe the infringing material, give information about location of infringing material on the network, identify the copyrighted work(s), contain a sworn statement that the notice of infringement is accurate, and be signed physically or electronically by an authorized person. !the OSP does not maintain a copy of the copyrighted material that is accessible to recipients for a longer period than is necessary for the communications; and !the material is transmitted without change. System Caching The OSP is not liable for monetary relief and injunctive relief is carefully circumscribed when the copyrighted material is temporarily stored on the system or network as part of an automatic process without change for use in refreshing, reloading, or other updating in accordance with accepted industry standards for data communications. Information Storage An OSP is not liable for monetary relief and injunctive relief is carefully circumscribed when an OSP stores infringing material on its network at the direction of a system user, if the OSP does not have actual knowledge of the infringement, is not aware of facts or circumstances that make the infringement apparent, or, upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the infringing material. Information Location Tools The standards applicable to storage of information apply generally to OSP liability for referring or linking users to an online location that may contain infringing material. That is, the OSP is not liable without actual knowledge or an awareness of facts that make the infringement apparent, or if the OSP acts expeditiously to remove or disable access upon obtaining knowledge or awareness of an infringement. Limitations on Liability of Nonprofit Educational Institutions In general, a university or other nonprofit educational institution is eligible for the same limitations on OSP liability as those described above for commercial OSPs. In recognition, however, of the special nature of the university environment, additional limitations on liability were added in Section 512(e). Special rules were developed for determining whether universities are liable for the acts of faculty members or graduate students. Teaching/research function. Online infringing activities of faculty members or graduate students, which occur when they are teaching or engaging in research, will not be attributed to the university, if certain conditions are met. These conditions are: (l) the infringing activities must not involve online access to instructional materials that are required or recommended for a course taught by the infringing instructor within the last 3 years;

(2) the institution must not have received more than 2 claims of copyright infringement concerning the particular instructor within the last 3 years; and (3) the institution must provide to the users of its system or network materials that accurately describe and promote compliance with copyright law. When these conditions are met, the instructor’s knowledge or awareness of infringing activities will not be attributed to the university. Non-teaching/non-research function. The special rules on liability do not apply when a faculty member or graduate student is performing a non-teaching/non- research function (for example, when the person is exercising administrative responsibilities or is carrying out operational responsibilities that relate to the institution’s role as a service provider). In those cases, the knowledge, awareness, and actions of the employee can be attributed to the university. However, in those cases, the limitations on liability available to commercial service providers would be available to the university. Nothing in subsection 512(e) creates any new liability for universities under the doctrines of respondent superior, or contributory infringement, where liability did not exist before enactment of the DMCA. Also, “subsection (e) has no impact on the fair use (section 107) doctrine or the availability of fair use in a university setting; similarly, section 110 of the Copyright Act dealing with classroom performance and distance learning is not changed by subsection (e).” 36 Injunctive Relief Monetary relief is not available against a qualifying service provider and injunctive relief is circumscribed. Section 512 (j) limits the scope of injunctive relief that may be obtained against a qualifying service provider. Distinctions are drawn between service providers qualifying for the limitations under Section 512 (a) (digital communications networks) and those qualifying under Section 512 (b)-(d). Section 512 (b)-(d) injunctive relief. Only three forms of injunctive relief may be granted if a qualified service provider has cached, temporarily stored, or unknowingly facilitated the location of infringing material. 1) The court may provide for the removal or blocking of infringing materialresiding at a specific location on the provider’s network. This is essentially an order to comply with the “removal-blocking” provisions of Section 512 (c) (l)(C). 2) The court may order the provider to terminate service to the subscriber who is engaging in the infringing activity. 3) In unusual cases, if the court considers it necessary, the court may grant other injunctive relief than that specified in Clauses (l) and (2), but must

36 DMCA Conference Report, 105-796 at 75-76. determine that this relief is the least burdensome to the service provider among comparably effective forms of relief. Section 512(a) injunctive relief. In the case of transmission of infringing material via transitory digital network communications, injunctive relief is further narrowed. If a court determines that any injunctive relief is appropriate, it may grant one or both of two forms of relief. l) The court may order termination of service to the subscriber. 2) Where the infringement relates to a foreign online location, the court mayenter an order to take reasonable steps to block access to a specific, identified foreign online location. Blocking orders are not available against a service provider qualifying under Section 512(a) in the case of infringing activity on a site within the United States or its territories. In granting even this circumscribed injunctive relief, the court must first 37 consider new criteria relating to the digital online environment. The DMCA prohibits most forms of ex parte injunctive relief (including temporary and preliminary relief) against a service provider who qualifies for the Section 512 limitation on liability. An exception is made only for “orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network.” 38 Other Limitations on Liability The Digital Millennium Copyright Act also creates penalties for knowing, material misrepresentations about infringing online activity; absolves OSPs of noncopyright liability if the OSP in good faith acts to disable or remove allegedly infringing material, subject to certain requirements for notifying the subscriber of receipt of a statutory notice of infringement from the copyright owner; confirms that traditional copyright defenses (such as fair use) are unaffected by an OSPs blockage of, or failure to block, access to alleged infringing material; and provides that copyright owners who seek the identification of the direct infringer from the OSP must obtain a subpoena from a court. Computer Maintenance or Repair Exemption — Title III Title III of the DMCA enacts the “Computer Maintenance Competition Assurance Act,” which amends Section 117 of title 17 U.S.C. Section 117 contains certain limitations on copyright liability relating to computer programs. Title III adds a new limitation relating to maintenance or repair of computers by independent service organizations. The Act overturns a decision of the Ninth Circuit holding that

37 Section 512 (j)(2), Title 17 U.S.C. 38 Section 512 (j)(3), Title 17 U.S.C. an independent computer service-repair company infringes the copyright in a computer program by causing reproduction of the program through activation of the computer, in the course of maintenance or repair work. 39 Under the revised Section 117 limitation, neither the owner or lessee of a machine that makes a copy of a computer program upon activation of the machine does not infringe the computer program copyright nor does the person authorized to maintain or repair the machine. The copy of the computer program must be destroyed immediately after the maintenance or repair work is completed This Act “has the narrow and specific intent of relieving independent service providers, persons unaffiliated with either the owner or lessee of the machine, from liability under the Copyright Act when, solely by virtue of activating the machine in which a computer program resides, they inadvertently cause an unauthorized copy of that program to be made.” 40 This amendment does not affect the liability of persons who make unauthorized adaptations, modifications or other changes to the computer program. The amendment makes no change with respect to the scope of the term “reproduction” as it is used in the Copyright Act. 41 Miscellaneous Provisions — Title IV Title IV of the Digital Millennium Copyright Act contains miscellaneous provisions relating to ephemeral recordings of digital broadcasts; exemptions for the preservation activities of libraries and archives in the digital environment: new compulsory licenses for making ephemeral recordings and transmissions of digital sound recordings; the assumption of contractual obligations relating to motion picture collective bargaining agreements; and the rank and authority of the Register of Copyrights and the rank of the Commissioner of Patents and Trademarks. The amendment concerning motion picture contracts is made to title 28 rather than title 17. The miscellaneous provisions also mandate two studies of copyright issues —

distance education (SEC. 403) and assumption of motion picture contracts (SEC. 406).

Ephemeral Recordings of Digital Broadcasts “Ephemeral recordings” are copies of transmission programs made by a transmitting organization for delayed transmission and for archival purposes. Under 17 U.S.C. 112 of the copyright law in effect before enactment of the DMCA,

commercial and noncommercial broadcasters were given the benefit of an exemption from the reproduction right to make at least one copy of a broadcast program for

39 MAI Systems Corp. v. Advanced Computer Systems of Michigan, Inc., 991 F. 2d 511 (9 th Cir. 1993). 40 Sectional Analysis of H.R. 2281, August 4, 1998, at 41. 41 DMCA Conference Report 105-796 at 76. delayed transmission or archival purposes. 42 This exemption clearly applies to analog transmissions, but its application to digital transmissions (which are now occurring on an experimental basis) has been uncertain. The DMCA amends 17 U.S.C. 112 and 114 to address two issues concerning the scope of the ephemeral recording exemption in digital contexts. 43 One amendment explicitly extends the Section 112 exemption to nonsubscription broadcasts of sound recordings in digital formats. Subscription music services, webcasters, satellite digital audio radio services and similar entities who operate under statutory licenses for the performance of sound recordings pursuant to 17 U.S.C. 114(f) are also entitled to make ephemeral recordings of the sound recordings they transmit. 44 The second amendment concerns the relationship between the ephemeral recording exemption and the anticircumvention provisions of new Section 1201 of the Copyright Act. “Concerns were expressed that if use of copy protection technologies became widespread, a transmitting organization might be prevented from engaging in its traditional activities of assembling transmission programs and making ephemeral recordings permitted by Section 112 for purposes of its own transmissions within its local service area and of archival preservation and security.” 45 The DMCA provides that if a broadcaster is prevented by the copyright owner’s anti-copying measures from making the permitted ephemeral recordings, the copyright owner must make available the necessary means to make the recording, provided it is technologically feasible and economically reasonable to do so. If the copyright owner fails to provide the necessary means in a timely manner in accordance with reasonable business requirements, the broadcaster is not liable for violation of the anti-copying measures. New Digital Audio Transmission License and New Ephemeral Recording Statutory License Background. The Digital Performance Right in Sound Recordings Act of 1995 46 (“1995 Digital Audio Act”) created a limited public performance right in sound recordings. Under existing copyright law, public performances of analog sound recordings are not within the control of the copyright owner, i.e., analog sound recordings can be played over radio and television or performed in other public places without the need to obtain a license or permission from the sound recording

42 Noncommercial broadcasters and governmental entities can make up to 30 copies of a broadcast program under certain conditions. 17 U.S.C. 112(b). 43 SEC. 402 of Title IV of the DMCA. 44 DMCA Conference Report 105-796 at 79. 45 DMCA Conference Report 105-796 at 78. 46 Pub L. 104-39, Act of November 1, 1995, which generally took effect on February 1, 1996.

copyright owner. (Of course, performance of any musical work embodied in the recording must be licensed.) Effective February 1996, however, digital sound recordings were granted limited rights of public performance. Under the 1995 Digital Audio Act, public performance rights were granted in subscription transmissions and interactive transmissions. The 1995 Act exempts nonsubscription digital broadcasts that are not interactive. Moreover, the 1995 Act distinguishes between interactive and noninteractive subscription performances. Noninteractive subscription services may be eligible for a statutory license. With respect to pay-per-listen, audio-on-demand, and similar interactive services, copyright owners are granted an exclusive right. Interactive services must negotiate with sound recording copyright owners to obtain the right to transmit the sound recordings. The 1995 Act does, however, place some strict conditions on the exclusive right relating to interactive services. Since the enactment of the 1995 Digital Audio Act, “ services commonly known as ‘webcasters’ have begun offering the public multiple highly-themed genre 47 channels of sound recordings [on the Internet] on a nonsubscription basis.” The webcasters and sound recording copyright owners have disagreed about application of the 1995 Act. 48 SEC. 405 of Title IV of the DMCA responds to this issue by adding two more statutory licenses for digital audio transmissions of sound recordings and for making multiple ephemeral recordings. 49 One new license applies to certain nonsubscription and new subscription services that perform digital sound recordings.

22 After the Ninth Circuit decision, the district court issued a more limited injunction which will require Napster to filter out infringing files from its system. Since then Napster has repeatedly tried and failed to meet the district court