|
[back to notice text]
Question: What are the DMCA Safe Harbor Provisions?
Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.
[back to notice text]
Question: What's wrong with removing a copyright notice?
Answer: Section 1202 of the Copyright Act prohbits unauthorized removal or alteration of copyright management information, which might include a copyright notice.
[back to notice text]
Question: What is fair use?
Answer:
There are no hard and fast rules for fair use (and anyone who tells
you that a set number of words or percentage of a work is "fair" is
talking about guidelines, not the law). The Copyright Act sets out
four factors for courts to look at (17 U.S.C. ? 107):
- The purpose and character of the use. Transformative uses
are favored over mere copying. Non-commercial uses are also more likely
fair.
- The nature of the copyrighted work. Is the original
factual in nature or fiction? Published or unpublished? Creative and
unpublished works get more protection under copyright, while using
factual material is more often fair use.
- The amount and
substantiality of the portion used. Copying nearly all of a work, or
copying its "heart" is less likely to be fair.
- The effect
on the market or potential market. This factor is often held to be the
most important in the analysis, and it applies even if the original is
given away for free. If you use the copied work in a way that
substitutes for the original in the market, it's unlikely to be a fair
use; uses that serve a different audience or purpose are more likely
fair. Linking to the original may also help to diminish the
substitution effect. Note that criticism or parody that has the side
effect of reducing a market may be fair because of its transformative
character. In other words, if your criticism of a product is so
powerful that people stop buying the product, that doesn't count as
having an "effect on the market for the work" under copyright law.
[back to notice text]
Question: What is copyright infringement? Are there any defenses?
Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above. The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of copying, and
- the market effect.
(17 U.S.C. 107) The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use." Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.
[back to notice text]
Question: What is the Berne Convention for the Protection of Literary and Artistic Works?
Answer: The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright, which was first adopted in Berne, Switzerland in 1886. It was developed at the instigation of Victor Hugo, and was thus influenced by the French "right of the author" (droit d'auteur), which contrasts with the Anglo-Saxon concept of "copyright", which has only been concerned with economic protection.
[back to notice text]
Question: What does a service provider have to do in order to qualify for safe harbor protection?
Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions. In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)] Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].
[back to notice text]
Question: Can an online service provider (OSP) be held contributorily liable for acts of trademark infringement by one of its users?
Answer: Under section 512(c) of the DMCA an OSP will not be held liable for instances of copyright infringement so long as the OSP satisfies certain statutory requirements. (See What are the DMCA Safe Harbor Provisions?.) However, there is no equivalent legislation pertaining to trademark infringement, and given the paucity of caselaw concerning liability of OSPs in such instances, it remains an open question as to whether or not an OSP could, or should, be held liable for acts of trademark infringement by its users. In trademark law contributory liability exists when a manufacturer or distributor intentionally induces another party to infringe a valid trademark, or when it continues to supply products to a party that it knows, or has reason to know, is using the products to engage in trademark infringement. Inwood Laboratories v. Ives Laboratories, 456 U.S. 844 (1982). (See What is contributory trademark infringement?.) Lower courts have since disagreed somewhat over what exactly satisfies the ?know, or has reason to know? standard. In one case, Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996), the Ninth Circuit Court of Appeals held that a flea market operator could not ignore, ?with impunity,? the actions of its vendors who were ?blatantly? engaging in trademark infringement. In another case, Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001), the District Court for the Southern District of New York refused to grant an ISP?s motion to dismiss in a case involving instances of trademark infringement occurring on a subscriber?s website hosted by the ISP. There the plaintiff allegedly had sent two e-mails to the ISP regarding the alleged infringement, but the ISP failed to take any action. Collectively, these few cases suggest that an OSP could be found contributorily liable for acts of trademark infringement. In any such suit, one of the main issues would be to what extent the OSP knew, or should have known, of the infringing acts? That is to say, what did the OSP do to police its service, or what should it have done? And more specifically, if the plaintiff attempted to notify the OSP of the infringing acts, what kind of notice would suffice? Under section 512 of the DMCA, the notice requirements are made quite clear. As the law stands now, however, that issue remains far less clear in the area of trademark infringement. See also Do the safe harbor provisions of section 512(c) ap...?.
[back to notice text]
Question: Does a copyright owner have to specify the exact materials it alleges are infringing?
Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials. [512(c)(3)(iii)], [512(d)(3)]. The provisions also require the copyright owners to identify the copyrighted work, or a representative list of the copyrighted works, that is claimed to be infringed. [512(c)(3)(A)(ii)]. Rather than simply sending a letter to the service provider that claims that infringing material exists on their system, these qualifications ensure that service providers are given a reasonable amount of information to locate the infringing materials and to effectively police their networks. [512(c)(3)(A)(iii)], [512(d)(3)]. However, in the recent case of ALS Scan, Inc. v. Remarq Communities, Inc., the court found that the copyright owner did not have to point out all of the infringing material, but only substantially all of the material. The relaxation of this specificity requirement shifts the burden of identifying the material to the service provider, raising the question of the extent to which a service provider must search through its system. OSP customers should note that this situation might encourage OSP's to err on the side of removing allegedly infringing material.
|
FAQ: Questions