Copyright Infringement, DMCA & Web Piracy

The ease with which copyrighted materials can be copied and distributed on the Internet has resulted in some new rules regarding copyright enforcement.

Avoid Peer-to-Peer Infringement

Peer-to-peer file sharing networks permit access to (and free distribution of) electronic files, usually consisting of copyrighted music, films, and software. These networks commonly permit users to communicate directly with each other, not through central servers. That is, these networks often lack a central location from which material is transmitted and received; all participants are both clients and servers. In 2005, the Supreme Court determined that individuals or companies who own or permit the use of such networks, with the goal of promoting its use to infringe copyright, are liable for the resulting acts of infringement by third parties using the network. (Metro-Goldwyn-Mayer, Inc. v. Grokster Ltd. (2005).)

The Family Entertainment and Copyright Act of 2005

Also striking a blow against peer-to-peer file sharing, Congress passed the Family Entertainment and Copyright Act of 2005 which, among its provisions, made it a criminal violation to knowingly place a copyrighted computer program, musical work, motion picture or other audiovisual work, or sound recording on a computer network accessible to the public for purposes of copying.

File Sharing Not a Fair Use

In 2005, a woman was sued for copyright infringement for downloading 30 songs using peer-to-peer file sharing software. She argued that her activity was a fair use because she was downloading the songs to determine if she wanted to later buy them. Since numerous sites, such as iTunes, permit listeners to sample and examine portions of songs without downloading, the court rejected this “sampling” defense. (BMG Music v. Gonzalez, 7th Cir. 2005).)

Defendants in a peer-to-peer file sharing case may have difficulty asserting a fair use defense. One defendant was denied that right since he had failed to provide evidence that his copying of music files involved any transformative use (an essential element in proving fair use). (Capitol Records Inc. v. Alaujan, (D. Mass., July 27, 2009)).

The DMCA Notice

The Digital Millennium Copyright Act (DMCA) is a federal law that includes various rules about online piracy, most notable of which is the DMCA Notice. Anyone who provides access to the Internet or who hosts a website (known as an Internet Service Provider or ISP), can avoid being sued for copyright infringement by using the DMCA’s safe harbor provision. If the ISP promptly removes infringing materials upon request, the ISP is not liable for copyright damages or other remedies. The DMCA also sets up a procedure in case the owner of the removed materials protests. In exchange for escaping liability for infringement, service providers must designate an agent to accept service of legal papers. The DMCA also relieves ISPs from liability for unknowingly linking to a site that does contain infringing material.

The DMCA’s “notice and takedown” procedures, described here, are often used by copyright claimants seeking to have an ISP remove infringing works. To protect against the unjustified use of this provision, Congress permits Internet publishers to bring affirmative claims against copyright owners who knowingly and materially misrepesent that infringement has occurred. In a 2004 case, two ISPs successfully used this provision to fight back against a DMCA notice and takedown procedure instigated by Diebold over the republication of an email archive. The emails from Diebold engineers allegedly sounded an alarm over flaws in Diebold’s electronic voting machines. A court ruled that the republication of the emails was a fair use because there was no commercial harm and no diminishment of the value of the works. (Online Privacy Group v. Diebold, (N.D. Cal. 2004).)

Here’s what a notice must contain:

  • identification of the copyrighted work
  • the Web site the alleged infringed content is located
  • the name and contact information for the claimant
  • the complaining party must attest to a good faith belief that the use of the material is unauthorized
  • the complaining party must state that under the penalty of perjury the notice is authorized by the copyright owner, and
  • the notice must be signed physically or with an electronic signature.

Before Sending a Notice …

In 2008, a district court ruled that prior to requesting a takedown notice, a copyright owner must consider the likelihood of a claim of fair use. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, ‘Let’s Go Crazy,’ by Prince. The owner of the video claimed that since Universal didn’t consider the issue of fair use, Universal could have not had a “good faith belief” they were entitled to a takedown. Faced with this novel issue, a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. (Lenz v. Universal Music Corp. (N.D. Cal. 2008)).

Violations of the DMCA

Violations of the DMCA can result in civil remedies consisting of injunctive relief, actual damages, and statutory damages. Repeat violators may be tagged with treble damages. A willful violation of the DMCA for personal or financial gain can result in stiff criminal penalties (up to ten years in prison).

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