A Decade Under the DMCA

Marcia Wilbur

The Digital Millennium Copyright Act

October 28, 1998 - Present

Introduction

Brief Overview of Copyright What is the DMCA Key Areas Cases Notification/Counter Notification

DMCA

What is the DMCA?

In 1998, a law was passed amending Title 17 – Copyright Act

Extension of Current Copyright Law

What is Copyright?

According to the Library of Congress (2004), copyright is protection for "original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works."

How does copyright work?

Copyright law is directed to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries (Heller, 2005).

Encouragement of Learning?

The Copyright Act in the United States was previously known as the Act for the Encouragement of Learning (Greene, 2005)

Restricts Encouragement of Learning?

Who Owns Copyright?

creator joint creators employer agency

A work is considered protected under copyright as soon as it is fixed in a tangible form.

Public Domain

copyright law is not applied to public domain materials

free to use and download by any party No permission is needed and no penalties Government documents are not covered by

copyright

Orphan works

Permission is sought but can not be acquired due to questions as to who owns the copyright to the work.

Fair Use

4 Factors:

1.) The use can not damage the market for the copyright owner.

2.) The portion of work used is taken into consideration.

3.) The purpose of the work is considered.

4.) The nature of the copyrighted work is considered.

Origins of Copyright

In 1534, King Henry VIII implemented censorship by means of licensing.

E monopoly to one printing company as long as they censored anything that royalty found unworthy.

Printed materials opposing the royals were censored. Anyone who printed materials offensive to the Crown was punished.

A proclamation was declared in 1538, informing the citizens that mere possession of offensive printed materials was punishable (Greene, 2005).

Current Copyright

1946: 11, 550 words. 1975: 22,310 words. 1976: 61, 600 words. 2000: 124, 320 words in the copyright

statute.

Other Laws

Audio Home Recording Act (AHRA)

Important Fair Use Doctrine

No Electronic Theft Act (NET)

Antitrust law/Sherman Act

Offers Patent like protection – Patent Law

Jurisdiction

First Sale Doctrine in commerce

Other Laws

Communications Act of 1934 – Subpoenas section violates privacy protections for cable subscribers in the Communications Act of 1934 set forth in 47 U.S.C. § 551(c)(1);

First Amendment – Section 512(h) violates the First Amendment rights of internet users

TEACH Act of 2002 – DMCA doesn’t allow digitizing analog, TEACH allows limited amount

Key AreasAnticircumvention

Copyright and Fair Use

Derivative Works

DMCA Safe Harbor

Subpoenas and Privacy

Reverse Engineering

Notifications

1201 (1)(A)

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

What can be considered a protected work? – FROM LOC

literary works; musical works, including any accompanying words dramatic works, including any accompanying music pantomimes and choreographic works pictorial, graphic, and sculptural works motion pictures and other audiovisual works sound recordings architectural works

Restrictions

No one can manufacture import offer to the public provide traffic

in any product service technology device or component or part thereof

Technological Measure to Effectively Control Access to a workA Technological measure `effectively controls

access to a work' if:the measure, in the ordinary course of its operation, requires

the application of information a process a treatment

with the authority of the copyright owner

to

gain access to the work.

Circumvent a technological measure is to:

descramble a scrambled work decrypt an encrypted work

or otherwise to avoid, bypass, remove, deactivate,

or impair a technological measure, without the authority of the copyright owner.

What is Technology?

A simple wooden spoon can be seen as technology

It's an extension of our arms, so that we can stir our food and not have to use our hands, resulting in not burning ourselves

Cases

DeCSS

Several suits were filed 2600 2600CT 72 Individuals and websites claiming CSS as a Trade Secret Jon Johanssen

What is DeCSS?

a. Something to argue about in LiViD

b. Utility for stripping Cascading Stylesheets

c. CSS descrambler

The Challenge

The court doesn't have jurisdiction (wrong parties, procedural problems)

DeCSS doesn't circumvent

DeCSS is within one of the exceptions

1201 is unconstitutional

Result

Jon Johanssen – Cleared of charges in January 2003

2600 lost, appealed, lost and decided not to go to the Supreme court

Protests Many Mirrors – Social dissent Positive outcome!

DVC-CCA v. Bunner

DVC-CCA sues dozens who live outside CA. Claimed defendants misappropriated trade secrets by

publishing DeCSS. California Supreme Court Bunner

DVD CCA summarily dismissed its claims after the California Supreme Court ruled that computer programs could be preliminarily restrained from publication only in very narrow circumstances.

The California Court of Appeals ruled that those circumstances were not met in Mr. Bunner's case because the program was not a trade secret at the time it was published, but instead was widely available around the world.

Thanks for sharing!!!!! ;)

DVC-CCA v. Pavlovich

Pavlovich – resident of Texas Jurisdiction rules for internet cases DVD CCA went to U.S. Supreme Court review

of the decision Rejected

Positive outcome!

From 2600:

“ People the world over know all about the DMCA and are committed to overturning it. The amount of education that has occurred in the last two and a half years is simply phenomenal. There are many other combatants now in the fight and we have never been more convinced that we will ultimately prevail.”

Result

Protests:

The first ever DMCA Protest – March 2000

Washington D.C.

Say No to DMCA

What is this DMCA ?

Items That May Be Used for Circumvention

Which of the following items is not considered a circumvention device?

1. Shift Key 2. Magic Marker3. Staple Remover4. Eraser5. White out6. Screwdriver

Other Cases

Dmitry Sklyarov1337 Speak Trailer – Star Wars

CharterDiebold

Penn State – Usher.mp3?Wal-martFatwalletGamespy

YouTube v. Viacom

Dmitry Sklyarov

Rot 13

Guvf vf gur ynzrfg rapelcgvba rire

Arrq V fnl Zber?

Free Dmitry

Russian Cryptographer Worked at Elcomsoft in Russia Gave Presentation at DefCon Was arrested in Las Vegas

Dmitry Protests – San Francisco

What do they want? Free Dmitry

Dmitry Sklyarov

Graphic created in GIMP by Kraken

Charges: FBI arrested for distribution of a product that circumvents copyright protection

Results: Charges dropped in exchange for testimony.

Dmitry Protest March – SF 2001

1337 Speak Trailerz LucasFilm vs. Star Wars

Marc Nuar created a 1337 trailer.

50, i|\| 7|-|3 (fashion) 0f g30rg3 1u(45, m4r( r3(3iv3d 4 DMCA |\|07ifi(47i0|\|

1337 Speak Trailer

Marc: I received the C&D via e-mail from Lucasfilm and a copy from my webhosting service when they suspended my account.

I did not make any official counter-notification. What I did do was tell my hosting company that I would remove all questionable material so that I could be guaranteed as little downtime as possible for my webspace. I also sent an e-mail response to Lucasfilm, but never heard back from them.

CoreAVC

Alan Nisota

CoreAVC is a project by CoreCodec that implements an H264/AVC video decoder in software.  

This is the video format used by most Blu-Ray and HD-DVD movies, and is commonly referred to as MPEG4 (though MPEG4 spans a wide range, and this is the hardest of the formats to deal with).

 CoreAVC is by far the fastest software decoder for this content available, allowing many machines to play High-Def content that would otherwise be unable to.

CoreAVC

coreavc-for-linux started as a set of patches to mplayer to support the initial CoreAVC release (0.0.4) so I could use it in Linux.

MPlayer list Betaboy says Linux version coming Eventually CoreCodec released version 1.2,

and later version 1.3. Alan made patches

CoreAVC

Mplayer doesn’t add patches to code base Alan starts coreavc-for-linux on Google Project includes

Windows DLL loader code from mplayer with my patches applied

a script to patch it into mplayer a patch for xine patch to use the code in MythTV

CoreAVC

Alan wanted 64 bit, wrote a server app for that CoreAVC 1.7 comes out Mail from Google, project takedown

“Infringing Materials Hosted on and/or Linked To From the Site.  The Site hosts and/or contains one or more links to CoreAVC, which contains CoreCodec;s copyrighted Software.  We have directly verified by downloading the file from the Site provided by Google Inc. that the file does include CoreCodec's copyrighted Software.”

Violation?

Alan was surprised:

“I had never linked to or hosted any CoreAVC binaries.  The code hosted at the coreavc-for-linux site was all either from mplayer, licensed under the GPL and distributed apropriately, or code that I wrote myself. “

“Google was actually very helpful in the matter, advising me of all my rights, hosting the notice on chillingeffects.org and allowing me to verify the contents of the site before disabling access to it.”

CoreAVC

“I was able to confirm that neither I nor anyone else had placed links to or copies of CoreAVC on the coreavc-for-linux site before it was removed.  Google recommended that I file a counter-claim, but for personal reasons I decided not to go down that avenue.  I figured that was the end of coreavc-for-linux.”

Mailing list – offer for negotiation with CoreAVC

CoreAVC Negotiation

2 Complaints from CoreAVC Use of trademark (not a DMCA issue…) Reverse Engineering

Alan notes: “that (a) this is not what their take-down notice claimed, instead specifically mentioning hosting/linking of copyrighted software, and (b) it is my understanding of the DMCA that reverse-engineering for the purposes of interoperability are permitted. “

Negotiations CoreAVC

Alan signed a formal request to reverse engineer and use trademark

Granted

Reverse Engineering

Circumvention is usually required for reverse engineering

Prevents reverse engineering of those measures that control access to a copyrighted work

But there is an exception

Reverse Engineering Exception

Computer Programs can be reverse engineered, if: Program is lawfully obtained Engineer seeks permission from the copyright

owner Uses results to create interoperable computer

program Do not publish the results Final program must interoperate with software

Can not interoperate with protected content

Reverse Engineering – Chilling Effects

Reverse engineers must carefully consider their planned work and whether it fits into the exception, because the exception is far too narrow to be useful for many reverse engineering needs.

Charter Communications

RIAA wanted 150 names p2p Charter goes to court Result: 8th Circuit Court of Appeals

RIAA CAN NOT use pre-litigation DMCA subpoenas

No case, no subpoena

Verizon

Riaa requests identity of 1 user Alleges KaZaA use Verizon refuses D.C. District grants subpoena D.C. Circuit Court of Appeals agreed with

Verizon

Usher? Or No

From Matt Soccio:

I received a forwarded message from our security office with the full text of the C&D notice. No one ever told me what materials were supposed to be removed.

Marcia: Was the notification a DMCA notification as per section 512a? In other words was it official?

Matt: Well, it was supposed to be an official 512a notice, but it didn't specify any offending content per that paragraph.

Usher? Or No

Marcia: Was this considered a priority issue?

Matt: Very much so. We immediately reformatted policy and notified users that the Astronomy Department does not have the resources to get involved with copyright violations and that any transgression would be between the perpetrator and the security office. So on top of a media circus there was also heated policy debate.

Even though the notification was invalid, the school took it seriously.

Usher or No?Marcia: Approximately how much time did it take

to realize what had happened, that it was Prof. Usher's file in question?

Matt: I am still not sure that it was Prof. Usher's content that sparked this. Since it was never stated in the notice what caused the red flag for RIAA, and we had several media files that were not in violation, whenever actually knew if it was /pub/usher or some /pub/randomuser/*.mp3.

I don't know how the Usher reference came into this. I had never heard of Usher before this, so I would have never made the connection.

Yes, I live under a rock.

Matt’s final comments

I realized this was a blunder on the part of RIAA. I understand that copyright protection is an issue,

especially on college campuses… …The DMCA fails when it puts enforcement in the

hands of the copyright owner instead of central governing/judicial body.

RIAA's carelessness in cases like this is a pretty solid reason why there needs to be some form of impartial intervention before the notices are sent off.

RIAA's PR guy told me that a temp made a mistake.

Walmart

Daniel Papasian – Parody

For a class project, Daniel created a parody of Walmart Foundation website.

His ISP received a DMCA Notification

Marcia: … But I felt the fear that comes when a large corp. are making attacks. And trust me, for a brief... very brief moment, I was scared of legal action.

Daniel: Yeah, it is ridiculous, and I too was scared for a few days. It was only the immense support and reassurance of public interest lawyers and unions that calmed me down.

Walmart Foundation Parody – Fair Use

Marcia: Do you think your site content was within the bounds of fair use? Why?

Daniel: I think the site was certainly within the bounds of fair use. …and in my case, the site was a clear parody. It wouldn't be legal if I used The Wal-Mart Foundation's website as a model for a website for my own charity, but to make social and political commentary on the Wal-Mart Foundation is speech, and in my opinion, protected speech.

Walmart Parody – No Counter Notification

Marcia: Did you make a counter notification? Do you have any suggestions or advice to others who might get a C&D?

Daniel: I haven't made a counter notification.

My best advice is to publicize the cease and desist as much as possible.

Even if you decide the best thing to do is to comply, public support and attention can never hurt.

Fatwallet

Fatwallet receives notification to remove sales information from site

Fatwallet complies Walmart files for subpoena Fatwallet states: Prices are NOT copyrighted

but Fact – sue! Walmart backs down

Gamespy

Online-gaming service provider

Sent Luigi Auriemma, an Italian hacker a cease-and-desist letter

Required Luigi to remove advisories and utilities about vulnerabilities

? Jurisdiction ?

Gamespy notification

Marcia: Was the C&D within the requirements stated by the DMCA?

Luigi: They talked specifically about DMCA, CFAA (computer fraud and abuse act), the Lanham Act and trademark abuse in this order in the part of the C&D where they listed the amount of money they wanted from me.

Gamespy

Marcia: Did you make a counter notification?

Luigi: Today was the first time I heard about this thing so I have searched on Internet... so no, I have not used it.

a. Records audio from a movie – Hello Dolly - Bypassed macrovision DRM

b. Archives the audio for future use

c. Shares DRM cracked music with his friend

d. watches Hello Dolly on an IPOD (not available through the iTunes store)

courtesy of Jesse Willishttp://www.sffaudio.com

Another DMCA violator?

Another DMCA Violator?

The Beatles?

Second Life

From the Linden Lab FAQ:

Can I sign notifications and counter-notifications with my Second Life avatar name?

We will not accept notices that are not signed by a real legal person. The DMCA process is a real-world

process with real-world ramifications.

Linden Labs FAQ

Can you change the DMCA process?

The Digital Millennium Copyright Act is federal law, passed by the United States Congress. Linden Lab does not have the power to change congressional acts.

You TubeViacom

Result: Motion Granted

User Names, IP, Videos viewed

Give 'em everything!

Google States User Privacy Concerns

“merely speculative”.

Judge Louis Stanton

Another DMCA Violator?

CNN?Reuters?Yahoo?

Reuter's reporter Grant Gross pointed it out -

“In yet another example of how the Digital Millennium Copyright Act could trample on the First Amendment, Reuters may have violated

the U.S. law by describing in a story this week how Sony’s “copy-proof” protection for CDs can be defeated with a

magic marker. “

Subpoenas – 512 h

A judicial subpoena is a court order that must be supported by a case or controversy at the time of its issuance

Violates the privacy protections for cable subscribers in the Communications Act of 1934 set forth in 47 U.S.C. § 551(c)(1)

Violates the First Amendment rights

Reverse Engineering or…Design Theft

Where is the line? Curiosity and research Exploiting for fun

Or

Exploiting for monetary purposes

DMCA AGENTS

Agents – Who are they?

Many companies have a DMCA agent. The DMCA agent handles

the notifications, counter notifications and works to remedy any

alleged infringement claims that are valid according to company

policy and the law.

A complete list of DMCA agents is located at the Library of Congress Copyright site.

http://www.copyright.gov/onlinesp/list/

GoDaddy

ICANN accredited registrar and according to their website, the world's largest domain name registrar.

Over 9 million domains to manage! Founded in 1997.

GoDaddy receives DMCA notifications and according to their DMCA agent, a very nice gentleman, as long as the claims meet the requirements for a notification, the site is left down for 10 days.

GoDaddy

While there are some counter notifications, many people take down whatever content allegedly infringes copyright, because the domain owners would rather not have their sites left down for any period of time.

GoDaddy DMCA Agent:

“ Users understand through the agreement for service the terms of service.”

Notifications 512(c)(3)(A)

Written and provided to the designated agent of the service provider and include:

A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. This

could be a lawyer, legal representative, copyright owner, etc.

Identification

Identification of the copyrighted work. If there are multiple copyrighted works at one online site

those that are to be covered by one notification, a list of the works must be included.

Identification of the material that is allegedly infringing. This is the material that is intended to be removed or access to which is to be disabled.

Location, Location, Location

The information for identification must be “reasonably sufficient” for the service provider to

locate the material most likely for the sole purpose of determining the content is present and for the removing or disabling of access to the materials

allegedly infringing.

Contact Information

The address, phone number and if available, the email address where the complainant can be

contacted.

Statement of Good Faith

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.

Statement Under Penalty of Perjury

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.

Do I get a Copy?

YES!The Host/Carrier/Service provider must supply

the user with prompt notification and a chance to respond.

The host or ISP must take reasonable steps promptly to notify the subscriber that it has

removed or disabled access to the material.

Make sure your contact info is current!!

Notification Situation

A user of Comcast states that he received a notification regarding Bit Torrent.

The user had a partial copy of the movie “Scarface”.

What should the user do?

A. Reply to the email

B. Remove partial copy

C. Counter Notify

D. Email Comcast: “Say hello to my little friends”

Notification Situation

A user of Comcast states that he received a notification regarding Bit Torrent. The user had a partial copy of the movie “Scarface”.

What should he do?

After 3 violations, apparently Comcast denies service. Read the agreement you signed with Comcast.

Suggestions:

Find alternative means to watch media

Don’t share the partial amount

Knowingly MisrepresentationViolations by Parties Notifying

“knowingly materially misrepresent[ing] … that material or activity is infringing.”

If you file a counter notifcation, and your claim is substantial, filing another notification for the same material is a violation of

the DMCA.

Wendy Seltzer and the NFL

Knowingly MisrepresentationViolations by Parties Notifying

“knowingly materially misrepresent[ing] … that material or activity is infringing.”

2. If the information is not infringing, the sender knows it, and you receive a notification!

Invalid Notifications!

Each Work MUST BE Identified.

The information for identification must be “reasonably sufficient” for the service provider to locate the material most likely for the sole

purpose of determining the content is present and for the removing or disabling of access to

the materials allegedly infringing.

Invalid Notifications!

ISP Sends NothingDo nothing :)

ISP Sends Something/Shuts your serviceSend Letter to ISP :(

Counter Notifications

Written statement by the person who has “access restricted” or “materials removed” by an ISP or

host due to a DMCA copyright infringement claim and notification by a copyright owner or

representative of a copyright owner.

The counter notification is sent to the ISP.

This is written communication to the ISP Customer relations, DMCA agent or

representative responsible for handling DMCA complaints and counter notifications.

Counter Notifications – Time frame for restoration of service

The ISP is then required to resume service within 10 to 14 business days unless Complainant

provides notification that they has filed paperwork seeking a restraining order.

.

Counter Notifications

The counter notification can be used to regainaccess to your service.

The ISP must comply.

The only case where the ISP may not replace your material or enable your service within 14days is if the person or entity originally alleginginfringement files an action for a restraining order.

Then the ISP's hands are tied.

Counter Notifications

To file a counter notification:

Provide in writing by fax or snail mail

1. Your name, phone number, email address.

Counter Notifications

2. If applicable, the specific material alleged as infringing that was removed with location.

3. If applicable, the specific alleged reason for disabled access.

Counter Notifications

4. A statement that you, (or) the Respondent, consent to the jurisdiction of Federal District

Court for the judicial district in which Respondent’s address is located .

(If outside the US, Delaware County, Pennsylvania)

5. Respondent will accept service of process originating from Complainant or an agent of

Complainant.

Counter Notifications

1. "I swear, under penalty of perjury, that I have a good faith belief that each image or article

identified above was removed or disabled as a result of a mistake or misidentification of the

material to be removed or disabled."

Counter Notifications

Signature of the Respondent or a representative person authorized to act on behalf of

Respondent.

Generated Counter Notification

Chilling Effects has an auto generator

http://www.chillingeffects.org/dmca/counter512.pdf

Fill in the fields and get your Counter Notification

Exemptions to the DMCA

Lists of Internet locations “domains, uniform resource locators (URLs), numeric IP addresses or any combination thereof.” – Censorware

Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. – No longer manufactured

Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

Exemptions to the DMCA

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function andthat prevent the enabling of screen readers to render the text into a “specialized format.“

Ebooks for the Blind

Exemptions: 2006 - 2009

During the next three years, the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of six classes of copyrighted works.

Exempt Classes

Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

Exemption

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, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

Questions?