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DMCA: Is It a Muzzle or Security?

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Since the advent of the Internet as a wide-open information conduit there has been a lot of worry amongst legislators, media corporations, and others with a stake in preventing content piracy to create a law that would add teeth to copyright for electronic communications. The long discussions, lobbying, and heated arguments between interested parties were loud and public. The end result was the passing of a complex law called The Digital Millennium Copyright Act, or DMCA.

DMCA was enacted by Congress in October 1998, to bring American copyright law in line with the World Intellectual Property Organization (WIPO) standards and rules as well as to tamp down on alleged piracy of electronically published media. It consists of five parts, of which the following two sections are most important:

  • Title I: WIPO Copyright and Performances and Phonograms Tries Implementation Act
  • Title II: Online Copyright Infringement Liability Limitation Act, called OCILLA for short.

Together, Titles I and II have had a huge impact on how information is published and referenced electronically, physically, and how it is cataloged and searched. For the first time, it became a crime to create any software or services that try to hack or break the coding placed into CDs, DVDs, and electronic media stored on servers that was meant to thwart pirates from stealing copyrighted work. The term used for the code that is often programmed directly into the chips or data streams is Digital Rights Management or DRM. The DMCA goes further than just criminalizing the creators of DRM hacks. It also criminalizes any person who tries to break a DRM whether they actually infringed on a copyright or not. Lastly, the DMCA increased the penalties for any copyright infringement on the Internet, correcting a missing level of protection for copyright holders.

Before the addition of Title II, DMCA required that the hosting company, called the Internet Service Provider (ISP), police its servers and take down any file that was felt to infringe on a copyright. Infringement is defined very broadly and can include even linking to copyrighted materials with attribution. Before the OCILLA addition, there was little defense for the owner of the offending materials or the ISP. This was an onerous requirement, and the OCILLA clause, nicknamed Safe Harbor, was created to remedy the liability of ISPs.

Safe Harbor states that the holder of the copyright has to request to the ISP that the alleged infringing material be removed. The ISP must act within a specific time period to take down the suspect material and then give the owner of the item’s name to the requester. Any litigation between the copyright owner and the alleged infringer then occurs away from the ISP, and cannot bounce back on the ISP. ISPs apply to use the safe harbor clause and there has developed an entire bureaucracy devoted to processing OCILLA requests and applications.

DRM is extremely controversial because the media companies that demand its use define their protections so broadly that the the DRM sometimes shuts out legitimate copying (such as the right to copy a CD to one’s computer or player for archiving, or in the case of Sony’s algorithm, shutting out Macintosh computers as a lawful players).

DMCA Could Stifle Education and Literacy Programs

It became apparent very quickly that the strict interpretation of the DMCA would play havoc with legitimate copying rights, such as the fair use copyright clause, free libraries, universities, public and private schools, and personal backups, as well as other reasons to legitimately copy or reference copyrighted works. So, additional clauses were added to the DCMA so that users could apply to the Government for three-year exemptions. According to Wikipedia, in November 2006, the following exemptions were approved:

  1. Audiovisual works included in the educational library of a college or university’s film or media studies department.
  2. Computer programs and video games distributed in formats that require the original media or hardware as a condition of access when upgrading to a newer physical or software format.
  3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
  4. Literary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
  5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network.
  6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers.

Learn more about how the DMCA applies to students

DMCA and the Freelancer

If you build websites, write web content, or are considering publishing your writing, videos, graphics, audio, or other multimedia content on your own website, then the DMCA affects you. The DMCA has a chilling affect on the freedom to share information on the Internet because it gives copyright holders unprecedented say in who is infringing and how. So far, there have been no lawsuits against linking to copyrighted materials or sites, such as online newspaper articles, white papers, corporate brochures, multimedia embedding, and so forth. But there have been massive suits against such sites as eBay, Google, YouTube (owned by Google), and Veoh (a multimedia service company for publishing clips from copyrighted materials). These law suits protest the operation of automated peer-to-peer file sharing systems and other systems that support the publication of materials on the Internet if the copyright owner feels there is an infringement of their rights.

The key statement is that the copyright holder only has to THINK the item infringes—the real situation doesn’t matter. For example, YouTube recently displayed a video posted by a noted producer to test the viability of a future movie. “Confessions Of An Iraq War Vet” used Burl Ives’ “Have A Holly Jolly Christmas” as background music that served a critical emotional juxtaposition with the suicidal confession appearing in the scene. YouTube pulled the music saying it allegedly infringed, yet the Producer had permission from the Ives’ Estate to use the song. It didn’t matter, as YouTube had received a DCMA Take Down Order and had to comply. Subsequently, the Producer and Copyright holder worked out another version of the song and the video was re-posted. This process occurred outside the responsibility of YouTube and it’s parent company, Google. The safe harbor clause is not cut and dried, but still highly contested.

You Think Someone Has Stolen Your Materials – What You Can Do

Should you discover that someone has posted something you have copyrighted, then the DMCA Take Down Notice offers a structure that legally requests the offending site to immediately delete the copied material and alert the perpetrator of the notice. The DMCA format, however, does not always work well with Creative Commons-licensed materials even through Creative Commons is an add-on to standard copyright and upholds DMCA standards.

The problem with DMCA from a freelancer’s point of view is that the onus of researching who owns the copyright for information we would like to cite or use in our work for hire is on us, even if our client says they own the copyright. Our client’s website is defined in DMCA cases as the ISP and if we are publishing content for the client and that content is deemed to be infringing, we are liable and not the client (if they own a safe harbor certificate). In addition, the DMCA is vague in how it defines infringement and take down requests must be followed simply if a copyright owner accuses a user of your client’ site (or yourself) of infringement, or you, as a website creator or owner will bear the penalties. There is no clause for discovering if there actually has been infringement.

The DMCA Take Down Notices may be capricious or spurious, such as when the Science Fiction and Fantasy Writers of America (SFWA) issued a very wide-ranging Take Down Order against a website called Scribd.com (a site for sharing documents in the same way that YouTube shares videos) for alleged copyright infringement pointing to a series of reading lists for teenagers and Creative Commons-licensed documents and caught several authors who had posted their own work. Cory Doctorow was caught in this dragnet because he published a book under the Share and Share-Alike, Not-For-Profit clause in Creative Commons and the book mentions Isaac Asimov which was one of the keywords used by SFWA to pick up copyright infringements. (Taken from Ars Technica, Nate Anderson, August 31, 2007, “Worse Than Vogon Poetry: Bogus DMCA takedowns stun sci-fi lovers”).

So, freelancers have more to worry about than meeting deadlines and making sure that they respect copyrights. To protect yourself, be sure to set up a process for handling DCMA take down notices.

How to File a DCMA Take Down Notice

If you find something you wrote or created posted without attribution on a website or copied, then you can contact the webmaster of the site and send them a DCMA Take Down Notice. The DCMA Title II Section specifies six pieces of information be included in the Take Down Notice:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The website owner or manager must take down the material whether or not it actually infringed on the copyright within 10 days. The alleged infringer then has the right to file a counter notice back to you. The Counter Notice must contain the following information. If you are sent a Take Down Notice Announcement from your Hosting service, you should avail yourself of the right to respond with a Counter Notice back to the Host requesting that the material be re-posted.

  1. A physical or electronic signature of the subscriber.
  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or mis-identification of the material to be removed or disabled.
  4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

If the web hosting service agrees to re-post the material, the originator of the Take Down Notice can take you to court and the Web Host is able to claim Safe Harbor status. If you issued the Take Down Notice, you have the right after 10 to 14 days of taking legal action.

How to Deal Rationally With the DMCA

As writers, designers, programmers, graphic artists, and creative entrepreneurs we can’t just ignore this law and hope it goes away. We do have to stay cognizant of what is posted on our servers or what we give to clients to be published online. The DMCA makes derivations, mixes, and even attributed embedding more difficult just as these art forms are coming into its own. There are organizations set up to combat the over-reaching of Take Down Notices, such as the Electronic Frontier Foundation (http://www.eff.org/issues/dmca) who publishes white papers and legal briefs in support of fair use rights.

As a freelancer, we can both thank the Government for protecting copyright and providing a vehicle to stop infringement and really dislike DMCA for its stifling affect on free expression and sharing as well as the paperwork it causes. But we can’t stay ignorant.

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