language: Deutsch   Français   italiano   Español   Português   日本語   russian   arabic   norwegian   swedish   danish   Nederlands   finland   ireland   English  

Digital Millennium Copyright Act digital millennium copyright act us code

HDFURY Digital Millennium Copyright Act

The Digital Millennium Copyright Act ( DMCA ) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.

On May 22, 2001, the European Union passed the Copyright Directive or EUCD, which addresses some of the same issues as the DMCA. The DMCA's principal innovation in the field of copyright, the exemption from direct and indirect liability of internet service providers and other intermediaries (Title II of the DMCA), was separately addressed, and largely followed, in Europe by means of the separate Electronic Commerce Directive. (Unlike U.S. federal laws and regulations, the execution of European Union directives usually requires separate legislation by or within each of the Union's member countries.)

Provisions Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, amends U.S. copyright law to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

The second portion is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention created by Macrovision (now Rovi Corporation) built in, giving Macrovision an effective monopoly on the analog video-recording copy-prevention market. However, section 1201(c) of the title clarified that the title does not change the underlying substantive copyright infringement rights, remedies, or defenses. The title contains other limitations and exemptions, including for research and reverse engineering in specified situations.

Title II: Online Copyright Infringement Liability Limitation Act

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent, effectively allowing individual companies to censor the internet. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users upon notice from such users claiming that the material in question is not, in fact, infringing. OCILLA also provides for subpoenas to OSPs to provide their users' identity.

Title III: Computer Maintenance Competition Assurance Act

DMCA Title III modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer. It reversed the precedent set in MAI Systems Corp. v. Peak Computer, Inc. , 991 F.2d 511 (9th Cir. 1993).

Title IV: Miscellaneous Provisions

DMCA Title IV contains an assortment of provisions:

Clarified and added to the duties of the Copyright Office. Added ephemeral copy for broadcasters provisions, including certain statutory licenses. Added provisions to facilitate distance education. Added provisions to assist libraries with keeping phonorecords of sound recordings. Added provisions relating to collective bargaining and the transfer of movie rights. Title V: Vessel Hull Design Protection Act

DMCA Title V added sections 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs were not considered covered under copyright law because they are useful articles whose form cannot be cleanly separated from their function.

Anti-circumvention exemptions

In addition to the safe harbors and exemptions the statute explicitly provides, 17 U.S.C. 1201(a) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works.

The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle. Consequently, the exemptions issued in the prior rulemakings, in 2000, 2003 and 2006 are no longer valid.

The current administratively-created exemptions, issued in July 2010, are:

Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling Systemwhen circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: Educational uses by college and university professors and by college and unive neveruzm. complainantrsity film and media studies students; Documentary filmmaking; Noncommercial videos. (A new exemption in 2010, similar to a previous educational exemption.) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. (A new exemption in 2010.) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. (Revised from a similar exemption approved in 2006.) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if: The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law. (A new exemption in 2010.) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. (A renewed exemption from 2006, based on a similar exemption approved in 2003.) 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. (A renewed exemption from 2006, based on a similar exemption approved in 2003.)

The Copyright Office approved two exemptions in 2000; four in 2003; six in 2006 and 2010. In 2000, the Office exempted (a) "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and (b) "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness." (revised and limited in 2003 and again in 2006). In 2003, the 2000 "literary works including computer programs" exemption was limited to "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete" and this exemption was renewed in both 2006 and 2010. The 2003 exemption for text readers of ebooks was renewed in both 2006 and 2010. The 2003 exemption for obsolete software and video game formats was renewed in 2006 but was not renewed in 2010. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006. The 2006 exemption for sound recordings allowed after security flaws were found in a copy protection system on some Sony CDs was not renewed in 2010. An exemption covering the audiovisual works included in the educational library of a college or university’s film or media studies department was not renewed in 2010. This exemption was replaced with an exemption on DVDs protected by the Content Scrambling System when circumvention is for the purpose of criticism or comment using short sections, for educational, documentary or non-profit use. The 2006 exemption for wireless handsets connecting to wireless networks was revised in 2010 to specify used handsets and require authorization from the wireless network operator. Another exemption for wireless handsets was introduced in 2010 specific to interoperability software on the phone itself.

Linking to infringing content

The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent DRM (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.

There have been no cases in the US where a website owner has been found liable for linking to copyrighted material outside of the above narrow circumstances.

Notable court cases [spaces:0][spaces:0] Edelman v. N2H2

In July 2002, American Civil Liberties Union filed a lawsuit on the behalf of Benjamin Edelman, a computer researcher at Berkman Center for Internet and Society, seeking a Declaratory judgment to affirm his first amendment rights when reverse engineering the censorware product of defendant N2H2 in case he intended to publish the finding. N2H2 filed a motion to dismiss, which the court granted.

RealNetworks, Inc. v. DVD Copy Control Association, Inc. Main article: RealNetworks, Inc. v. DVD Copy Control Association, Inc.

In August 2009, the DVD Copy Control Association won a lawsuit against RealNetworks for violating copyright law in selling its RealDVD software, allowing users to copy DVDs and store them on a harddrive. The DVD Copy Control Association claimed that Real violated the DMCA by circumventing anti-piracy measures ARccOS Protection and RipGuard, as well as breaking Real's licensing agreement with the MPAA's Content Scrambling System.

Viacom Inc. v. YouTube, Google Inc. Main article: Viacom International Inc. v. YouTube, Inc.

On March 13, 2007, Viacom filed a lawsuit against YouTube and its corporate parent Google for copyright infringement seeking more than $1 billion in damages. The complaint was filed in the U.S. District Court for the Southern District of New York. Viacom claims the popular video-sharing site was engaging in "massive intentional copyright infringement" for making available a contended 160,000 unauthorized clips of Viacom's entertainment programming. Google lawyers say they are relying on the 1998 Digital Millennium Copyright Act to shield them from liability.

On June 23, 2010, U.S. District Judge Louis Stanton granted summary judgment in favor of YouTube. The court held that YouTube is protected by the safe harbor of the DMCA. Viacom has said that it will appeal before the U.S. Court of Appeals for the Second Circuit as soon as possible.

IO Group, Inc. v. Veoh Networks, Inc. Main article: IO Group, Inc. v. Veoh Networks, Inc.

On June 23, 2006 IO Group, Inc. filed a complaint against Veoh Networks, Inc. in the U.S. District Court for California's Northern District. IO Group alleged that Veoh was responsible for copyright infringement by allowing videos owned by IO Group to be accessed through Veoh's online service without permission over 40,000 times between the dates June 1 and June 22.

Veoh is a Flash video site relying on user contributed content. IO Group argued that since Veoh transcoded user uploaded videos to Flash format it became a direct infringer and the materials were under their direct control, thereby disqualifying them for DMCA safe harbor protection.

The ruling judge disagreed with the argument, stating that "Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the thirdparty software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users." The Court has granted the Veoh's motion for summary judgment, on the basis of the DMCA, holding that the defendant's video-sharing web site complied and was entitled to the protection of the statute's "safe harbor" provision.Even though Veoh won the court case, it blamed the litigation as one of the causes of its preparing to file Chapter 7 bankruptcy and its subsequent sale to Qlipso.

Vernor v. Autodesk, Inc. Main article: Vernor v. Autodesk, Inc.

After numerous DMCA takedown notices in response to his eBay listings, Timothy S. Vernor sued Autodesk in August 2007 alleging that Autodesk abused the DMCA and disrupted his right to sell used software he bought at a garage sale. In May 2008, a federal district judge in Washington State dismissed Autodesk's argument that the software's license agreement preempted the seller from his rights under the first-sale doctrine. In September 2010, the US Court of Appeals for the Ninth Circuit reversed, holding that "a software user is a licensee rather than an owner of a copy where the copyright owner  specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and imposes notable use restrictions." 

enz v. Universal Music Corp. Main article: Lenz v. Universal Music Corp.

In 2007, Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania made a home video of her 13-month-old son dancing to "Let's Go Crazy" and posted a 29-second video on the video-sharing site YouTube. Four months after the video was originally uploaded, Universal Music Group, which owned the copyrights to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act.

Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks—not two weeks, as required by the Digital Millennium Copyright Act—to see whether Universal planned to sue Lenz for infringement. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song.

In August 2008, U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material.

On February 25, 2010, Judge Fogel issued a ruling rejecting several of Universal's affirmative defenses, including the defense that Lenz suffered no damages.

Flava Works Inc. v. Gunter Main article: Flava Works Inc. v. Gunter

In the case of Flava Works Inc. v. Gunter the court denied the defendant safe harbour protection under DMCA U.S.C. § 512. The court found that the defendant had knowledge of its users infringing activity and also failed to prevent future infringing activity. As such the plaintiff's motion for preliminary injunction was granted.

Criticisms Takedown Notice

The DMCA has been criticized for making it too hard for copyright owners to protect their rights. Owners of "community based" infringing websites need only take down infringing content to avoid all liability.

Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act, quoting results from a 2005 study by Californian academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse. Takedown notices targeting a competing business made up over half (57%) of the notices Google has received, the company said, and more than one-third (37%), "were not valid copyright claims."

Effect on Analog Video Equipment

Analog Copy Protection (ACP), the encryption technology created by Rovi Corporation (Formerly Macrovision), is designed to thwart users' attempts to reproduce content via analog cables. When a DVD is played through an analog video cable and recorded using a VCR, Rovi’s ACP technology will distort the copy partially or completely.

The technology works by adding additional lines to the video signal. In the NTSC video standard, blank lines (vertical blanking intervals) that the user cannot see are used for functions like closed captioning. Rovi Corporation uses these blank lines to implement its ACP technology.

The implementation of ACP has been ill-regarded by some video enthusiasts. Many claim that the technology has led to signal issues with VCRs and analog video equipment. Some VCRs misread the encryption used to prevent copying, distorting the video image regardless of whether the recording is original or a copy.

The DMCA has been criticized for forcing all producers of analog video equipment to support the proprietary copy protection technology of Rovi Corporation, a commercial firm. [ citation needed ] The producers of video equipment are forced by law to support and implement the corporation's proprietary technology. [ citation needed ] This benefits Rovi Corporation financially, whereas those forced to implement it receive neither profit nor receive compensation.

Additionally, some criticize the implementation of ACP as a violation of their fair use rights. A recently developed TV-streaming product called the Slingbox uses analog signals to convey video from television to a mobile device. However, the encryption used by ACP blocks analog transmission, rendering the Slingbox unusable. Additionally ACP blocks the use of recording for educational purposes. On one or more accounts, students have not been able to cite and record cable sources properly due to ACP restrictions.

Effect on research Main article: Digital rights management

The DMCA has had an impact on the worldwide cryptography research community, since an argument can be made that any cryptanalytic research violates, or might violate, the DMCA. The arrest of Russian programmer Dmitry Sklyarov in 2001, for alleged infringement of the DMCA, was a highly publicized example of the law's use to prevent or penalize development of anti-DRM measures. While working for ElcomSoft in Russia, he developed The Advanced eBook Processor , a software application allowing users to strip usage restriction information from restricted e-books, an activity legal in both Russia and the United States. Paradoxically, under the DMCA, it is not legal in the United States to provide such a tool. Sklyarov was arrested in the United States after presenting a speech at DEF CON and subsequently spent nearly a month in jail. The DMCA has also been cited as chilling to legitimate users, such as students of cryptanalysis (including, in a well-known instance, Professor Edward Felten and students at Princeton), and security consultants such as Niels Ferguson, who has declined to publish information about vulnerabilities he discovered in an Intel secure-computing scheme because of his concern about being arrested under the DMCA when he travels to the US.

Effect on innovation and competition

In at least one court case, the DMCA has been used by Open Source software projects to defend against conversion of software (i.e. license violations) that involved removal of copyright notices. This defense can be used even without timely copyright registration, and can generate attorney fee awards, which together make it a useful strategy for Open Source organizations.

Reform and opposition

There are efforts in Congress to modify the Act. Rick Boucher, a Democratic congressman from Virginia, is leading one of these efforts by introducing the Digital Media Consumers' Rights Act (DMCRA).

A prominent bill related to the DMCA is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), known in early drafts as the Security Systems and Standards Certification Act (SSSCA). This bill, if it had passed, would have dealt with the devices used to access digital content and would have been even more restrictive than the DMCA.

On the tenth anniversary of the DMCA, the Electronic Frontier Foundation documented harmful consequences of the anti-circumvention provisions. They document that the DMCA:

stifles free expression, such as in its use against Russian programmer Dmitry Sklyarov, Princeton Professor Edward Felten, and journalists; jeopardizes fair use; impedes competition, such as blocking aftermarket competition in toner cartridges, garage door openers, and enforcing walled gardens around the iPod; and interferes with computer intrusion laws.



Copyright © 2013 All Rights Reserved.   CDR-NEDERLAND




digital millennium copyright act us code

official moncler outlet sale
moncler womens jacket with fur hood
outlet moncler online affidabili
cheap replica moncler jackets china
complaint letter to apartment manager Picking The Locks: Redefining Copyright Law In The Digital Age Picking The Locks: Redefining Copyright Law In The Digital Age Listen · 7:06 7:06 Toggle more options Download Embed Embed "> <iframe src="https://www./player/embed/360196476/361206299" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player"> Transcript Facebook Twitter Google+ Email November 3, 2014 5:11 PM ET Heard on All Things Considered NPR Staff

Information Doesn't Want to Be Free

Laws for the Internet Age

by Cory Doctorow , Amanda Palmer and Neil Gaiman

Hardcover, 164 pages |

purchase close overlay Buy Featured Book Title Information Doesn't Want to Be Free Subtitle Laws for the Internet Age Author Cory Doctorow, Amanda Palmer, et al Your purchase helps support NPR programming. How?

Amazon Independent Booksellers

Information wants to be free. At least that's what Internet activists and many consumers say in support of free online content.

But when we stream a new film online or listen to music on Spotify, we don't always consider — or care about — the artists who are losing out.

The debates over intellectual property, copyright and traditional ideas of enforcement have been hot topics of late. The fall of Napster in the late '90s and the current battle between publisher Hachette and Amazon show that copyright law needs to be rewritten to fit digital standards.

In his new book, Information Doesn't Want To Be Free: Laws For The Internet Age, author Cory Doctorow argues that creators can make money even when their content is available online free of charge. For creators to succeed in the digital age, he says, copyright law must be reformed to reflect an age in which tech platforms control content.

Interview Highlights

On why we think Internet content should be free

I'm not really interested in whether the stuff that I get on the Internet is free or isn't. I certainly pay for a lot of stuff. For me the concern is whether or not the money that's spent when we buy things on the Internet goes mostly to the creators and then to their investors and then to the platforms. Or whether as it is today, the platforms have the whip hand and the investors can extract monopoly rents from the creators and then the creators sort of sit at the bottom of the barrel. People have always found ways to get stuff for free, and certainly copying is not gonna get any harder from here on in. So for me the interesting thing is not why do some people get stuff for free — they've done that for as long as there have been libraries or people singing on street corners. The interesting thing for me, as a creator, is how do I ensure that my share of the money that people spend is as large as possible?

On how digital locks enforce copyright online

If you want to buy an app from someone other than Apple, you can't. Not because your phone can't run software; your phone can run all the programs that can be compiled for it. But because your phone has a lock on it that tries to stop you from loading software [from which] Apple hasn't gotten a 30 percent cut of the sale price. That's why Apple puts that [lock] on there. And you know under normal circumstances, you would expect that to be taken care of by markets. If you bought a dishwasher where you could only use the manufacturer's dishes, you would expect another manufacturer to make compatible dishes.

Enlarge this image

Cory Doctorow is the author of young adult novels like Pirate Cinema and Little Brother and novels for adults like Rapture of the Nerds and Makers . Jonathan Worth hide caption

toggle caption Jonathan Worth Cory Doctorow is the author of young adult novels like Pirate Cinema and Little Brother and novels for adults like Rapture of the Nerds and Makers .

Jonathan Worth

On the consequences of digital locks

In 1998, we passed this law called the Digital Millennium Copyright Act, the DMCA, and what it says is that it is against the law to remove a lock even if you own the copyright to the work the copyright is protecting. So one of the publishers right now has said they've always insisted on digital locks on their e-books, and they're in a pricing dispute with Amazon who wants to take more of the money that they are generating through their books.

Under normal circumstances, if Amazon decided not to sell Hachette's books, you would expect Hachette to say to all the people who want to read J.K Rowling or Amanda Palmer's new book, "Here's a tool that lets you convert your e-books to run on iBooks or on Google Play or on Kobo or on Nook. Go ahead and just switch to someone else's store, and buy your books there." But because only Amazon is allowed to unlock Hachette's books, even though Hachette controls the copyright, Amazon controls the lock. Amazon now runs that negotiation. They have all the negotiating leverage, and what happens is the rightful share of the investor is expropriated by the platform.

On digital copyright law reform

We can easily see how you would make a digital locks rule that didn't do this crazy thing. What you would say is that "it's against the law to break a digital lock if you're violating copyright, and if you're not violating copyright, it's not against the law to break a digital lock." And that would solve the problem pretty handily because then we could make tools that let people do things that are illegal, but that the manufacturer doesn't want them to do, which is a time-honored tradition whether that's plugging things into your cigarette lighter in the car that the manufacturer never intended for you to do or using your blender to mix paint. You know what we do with our stuff is our own business, and if we break the law then maybe we get punished, but just using a product in an unintended way shouldn't be a felony.

All Tech Considered Sci-Fi's Cory Doctorow Separates Self-Publishing Fact From Fiction Book Reviews You Don't Have To Be A 'Nerd,' But It Helps

On new models of monetizing online content

Once we give up on the idea of applying copyright to normal people and we limit it to the industry, we know how to regulate the industry because we know where they all live. Historically, the way we have managed contexts in which it no longer became possible to control individual uses was to just let people pay once to use everything and then use statistical analysis to figure out who the money went to. So if you're at a radio station, you drop the needle, you don't call the record label to find out how much it's gonna cost you to play a song. You just pay a single fee, and then you figure out statistically at the end of the quarter whose music was played, and the money is dispersed that way. And the important thing is [that] as imperfect as this solution is, it's way more perfect than adding censorship and surveillance to the Internet in the name of making sure that people listen to music the right way.

Read an excerpt of Information Doesn't Want to Be Free

Digital Millennium Copyright Act copyright Internet piracy Facebook Twitter Google+ Email

``(ii) The procedures specified in subparagraph (B) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a)(1) during a 60-day period commencing— ``(I) 6 months after publication of a notice of the initiation of voluntary negotiation proceedings under subparagraph (A) pursuant to a petition under clause (i)(I); or ``(II) on July 1, 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with subparagraph (A). ``(iii) The procedures specified in subparagraph (B) shall be concluded in accordance with section 802 . ``(3) License agreements voluntarily negotiated at any time between 1 or more copyright owners of sound recordings and 1 or more entities performing sound recordings shall be given effect in lieu of any determination by a copyright arbitration royalty panel or decision by the Librarian of Congress. ``(4)(A) The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their sound recordings under this section, and under which records of such use shall be kept and made available by entities performing sound recordings. ``(B) Any person who wishes to perform a sound recording publicly by means of a transmission eligible for statutory licensing under this subsection may do so without infringing the exclusive right of the copyright owner of the sound recording— ``(i) by complying with such notice requirements as the Librarian of Congress shall prescribe by regulation and by paying royalty fees in accordance with this subsection; or ``(ii) if such royalty fees have not been set, by agreeing to pay such royalty fees as shall be determined in accordance with this subsection. ``(C) Any royalty payments in arrears shall be made on or before the twentieth day of the month next succeeding the month in which the royalty fees are set.´´. (3) Subsection (g) is amended— (A) in the subsection heading by striking `` Subscription ´´; (B) in paragraph (1) in the matter preceding subparagraph (A), by striking ``subscription transmission licensed´´ and inserting ``transmission licensed under a statutory license´´; (C) in subparagraphs (A) and (B) by striking ``subscription´´; and (D) in paragraph (2) by striking ``subscription´´. (4) Subsection (j) is amended— (A) by striking paragraphs (4) and (9) and redesignating paragraphs (2), (3), (5), (6), (7), and (8) as paragraphs (3), (5), (9), (12), (13), and (14), respectively; (B) by inserting after paragraph (1) the following: ``(2) An 'archived program' is a predetermined program that is available repeatedly on the demand of the transmission recipient and that is performed in the same order from the beginning, except that an archived program shall not include a recorded event or broadcast transmission that makes no more than an incidental use of sound recordings, as long as such recorded event or broadcast transmission does not contain an entire sound recording or feature a particular sound recording.´´; (C) by inserting after paragraph (3), as so redesignated, the following: ``(4) A 'continuous program' is a predetermined program that is continuously performed in the same order and that is accessed at a point in the program that is beyond the control of the transmission recipient.´´; (D) by inserting after paragraph (5), as so redesignated, the following: ``(6) An 'eligible nonsubscription transmission' is a noninteractive nonsubscription digital audio transmission not exempt under subsection (d)(1) that is made as part of a service that provides audio programming consisting, in whole or in part, of performances of sound recordings, including retransmissions of broadcast transmissions, if the primary purpose of the service is to provide to the public such audio or other entertainment programming, and the primary purpose of the service is not to sell, advertise, or promote particular products or services other than sound recordings, live concerts, or other musicrelated events. ``(7) An 'interactive service' is one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large, or in the case of a subscription service, by all subscribers of the service, does not make a service interactive, if the programming on each channel of the service does not substantially consist of sound recordings that are performed within 1 hour of the request or at a time designated by either the transmitting entity or the individual making such request. If an entity offers both interactive and noninteractive services (either concurrently or at different times), the noninteractive component shall not be treated as part of an interactive service. ``(8) A 'new subscription service' is a service that performs sound recordings by means of noninteractive subscription digital audio transmissions and that is not a preexisting subscription service or a preexisting satellite digital audio radio service.´´; (E) by inserting after paragraph (9), as so redesignated, the following: ``(10) A 'preexisting satellite digital audio radio service' is a subscription satellite digital audio radio service provided pursuant to a satellite digital audio radio service license issued by the Federal Communications Commission on or before July 31, 1998, and any renewal of such license to the extent of the scope of the original license, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service. ``(11) A 'preexisting subscription service' is a service that performs sound recordings by means of noninteractive audioonly subscription digital audio transmissions, which was in existence and was making such transmissions to the public for a fee on or before July 31, 1998, and may include a limited number of sample channels representative of the subscription service that are made available on a nonsubscription basis in order to promote the subscription service.´´; and (F) by adding at the end the following: ``(15) A 'transmission' is either an initial transmission or a retransmission.´´. (5) The amendment made by paragraph (2)(B)(i)(III) of this subsection shall be deemed to have been enacted as part of the Digital Performance Right in Sound Recordings Act of 1995 , and the publication of notice of proceedings under section 114(f)(1) of title 17, United States Code , as in effect upon the effective date of that Act, for the determination of royalty payments shall be deemed to have been made for the period beginning on the effective date of that Act and ending on December 1, 2001. (6) The amendments made by this subsection do not annul, limit, or otherwise impair the rights that are preserved by section 114 of title 17, United States Code , including the rights preserved by subsections (c), (d)(4), and (i) of such section. (b) Ephemeral Recordings.— Section 112 of title 17, United States Code , is amended— (1) by redesignating subsection (e) as subsection (f); and (2) by inserting after subsection (d) the following: ``(e) Statutory License. —(1) A transmitting organization entitled to transmit to the public a performance of a sound recording under the limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or under a statutory license in accordance with section 114(f) is entitled to a statutory license, under the conditions specified by this subsection, to make no more than 1 phonorecord of the sound recording (unless the terms and conditions of the statutory license allow for more), if the following conditions are satisfied: ``(A) The phonorecord is retained and used solely by the transmitting organization that made it, and no further phonorecords are reproduced from it. ``(B) The phonorecord is used solely for the transmitting organization's own transmissions originating in the United States under a statutory license in accordance with section 114(f) or the limitation on exclusive rights specified by section 114(d)(1)(C)(iv) . ``(C) Unless preserved exclusively for purposes of archival preservation, the phonorecord is destroyed within 6 months from the date the sound recording was first transmitted to the public using the phonorecord. ``(D) Phonorecords of the sound recording have been distributed to the public under the authority of the copyright owner or the copyright owner authorizes the transmitting entity to transmit the sound recording, and the transmitting entity makes the phonorecord under this subsection from a phonorecord lawfully made and acquired under the authority of the copyright owner. ``(3) [1] Notwithstanding any provision of the antitrust laws, any copyright owners of sound recordings and any transmitting organizations entitled to a statutory license under this subsection may negotiate and agree upon royalty rates and license terms and conditions for making phonorecords of such sound recordings under this section and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments. ``(4) No later than 30 days after the date of the enactment of the Digital Millennium Copyright Act , the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by paragraph (2) of this subsection during the period beginning on the date of the enactment of such Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates shall include a minimum fee for each type of service offered by transmitting organizations. Any copyright owners of sound recordings or any transmitting organizations entitled to a statutory license under this subsection may submit to the Librarian of Congress licenses covering such activities with respect to such sound recordings. The parties to each negotiation proceeding shall bear their own costs. ``(5) In the absence of license agreements negotiated under paragraph (3), during the 60-day period commencing 6 months after publication of the notice specified in paragraph (4), and upon the filing of a petition in accordance with section 803(a)(1) , the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of reasonable rates and terms which, subject to paragraph (6), shall be binding on all copyright owners of sound recordings and transmitting organizations entitled to a statutory license under this subsection during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on December 31, 2000, or such other date as the parties may agree. Such rates shall include a minimum fee for each type of service offered by transmitting organizations. The copyright arbitration royalty panel shall establish rates that most clearly represent the fees that would have been negotiated in the marketplace between a willing buyer and a willing seller. In determining such rates and terms, the copyright arbitration royalty panel shall base its decision on economic, competitive, and programming information presented by the parties, including— ``(A) whether use of the service may substitute for or may promote the sales of phonorecords or otherwise interferes with or enhances the copyright owner's traditional streams of revenue; and ``(B) the relative roles of the copyright owner and the transmitting organization in the copyrighted work and the service made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, and risk. ``In establishing such rates and terms, the copyright arbitration royalty panel may consider the rates and terms under voluntary license agreements negotiated as provided in paragraphs (3) and (4). The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their sound recordings under this section, and under which records of such use shall be kept and made available by transmitting organizations entitled to obtain a statutory license under this subsection. ``(6) License agreements voluntarily negotiated at any time between 1 or more copyright owners of sound recordings and 1 or more transmitting organizations entitled to obtain a statutory license under this subsection shall be given effect in lieu of any determination by a copyright arbitration royalty panel or decision by the Librarian of Congress. ``(7) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in paragraph (4) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, in the first week of January 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with paragraph (4). The procedures specified in paragraph (5) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon filing of a petition in accordance with section 803(a)(1) , during a 60-day period commencing on July 1, 2000, and at 2-year intervals thereafter, except to the extent that different years for the repeating of such proceedings may be determined in accordance with paragraph (4). The procedures specified in paragraph (5) shall be concluded in accordance with section 802 . ``(8)(A) Any person who wishes to make a phonorecord of a sound recording under a statutory license in accordance with this subsection may do so without infringing the exclusive right of the copyright owner of the sound recording under section 106(1) — ``(i) by complying with such notice requirements as the Librarian of Congress shall prescribe by regulation and by paying royalty fees in accordance with this subsection; or ``(ii) if such royalty fees have not been set, by agreeing to pay such royalty fees as shall be determined in accordance with this subsection. ``(B) Any royalty payments in arrears shall be made on or before the 20th day of the month next succeeding the month in which the royalty fees are set. ``(9) If a transmitting organization entitled to make a phonorecord under this subsection is prevented from making such phonorecord by reason of the application by the copyright owner of technical measures that prevent the reproduction of the sound recording, the copyright owner shall make available to the transmitting organization the necessary means for permitting the making of such phonorecord as permitted under this subsection, if it is technologically feasible and economically reasonable for the copyright owner to do so. If the copyright owner fails to do so in a timely manner in light of the transmitting organization's reasonable business requirements, the transmitting organization shall not be liable for a violation of section 1201(a)(1) of this title for engaging in such activities as are necessary to make such phonorecords as permitted under this subsection. ``(10) Nothing in this subsection annuls, limits, impairs, or otherwise affects in any way the existence or value of any of the exclusive rights of the copyright owners in a sound recording, except as otherwise provided in this subsection, or in a musical work, including the exclusive rights to reproduce and distribute a sound recording or musical work, including by means of a digital phonorecord delivery, under sections 106(1) , 106(3) , and 115 , and the right to perform publicly a sound recording or musical work, including by means of a digital audio transmission, under sections 106(4) and 106(6) .´´. (c) Scope of Section 112(a) of Title 17 Not Affected.— Nothing in this section or the amendments made by this section shall affect the scope of section 112(a) of title 17, United States Code , or the entitlement of any person to an exemption thereunder. (d) Procedural Amendments to Chapter 8.— Section 802 of title 17, United States Code , is amended— (1) in subsection (f)— (A) in the first sentence by striking ``60´´ and inserting ``90´´; and (B) in the third sentence by striking ``that 60-day period´´ and inserting ``an additional 30-day period´´; and (2) in subsection (g) by inserting after the second sentence the following: ``When this title provides that the royalty rates or terms that were previously in effect are to expire on a specified date, any adjustment by the Librarian of those rates or terms shall be effective as of the day following the date of expiration of the rates or terms that were previously in effect, even if the Librarian's decision is rendered on a later date.´´. (e) Conforming Amendments.— (1) Section 801(b)(1) of title 17, United States Code , is amended in the second sentence by striking ``sections 114, 115, and 116´´ and inserting `` sections 114(f)(1)(B) , 115 , and 116 ´´. (2) Section 802(c) of title 17, United States Code , is amended by striking ``section 111, 114, 116, or 119, any person entitled to a compulsory license´´ and inserting `` section 111 , 112 , 114 , 116 , or 119 , any transmitting organization entitled to a statutory license under section 112(f) , any person entitled to a statutory license´´. (3) Section 802(g) of title 17, United States Code , is amended by striking ``sections 111, 114´´ and inserting `` sections 111 , 112 , 114 ´´. (4) Section 802(h)(2) of title 17, United States Code , is amended by striking ``section 111, 114´´ and inserting `` section 111 , 112 , 114 ´´. (5) Section 803(a)(1) of title 17, United States Code , is amended by striking ``sections 114, 115´´ and inserting `` sections 112 , 114 , 115 ´´. (6) Section 803(a)(5) of title 17, United States Code , is amended— (A) by striking ``section 114´´ and inserting `` section 112 or 114 ´´; and (B) by striking ``that section´´ and inserting ``those sections´´. Sec. 406. Assumption of Contractual Obligations Related to Transfers of Rights in Motion Pictures. [ edit ] (a) In General.— Part VI of title 28, United States Code , is amended by adding at the end the following new chapter: ``CHAPTER 180—ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS´´ ``Sec. 4001. Assumption of contractual obligations related to transfers of rights in motion pictures. § 4001 . Assumption of contractual obligations related to transfers of rights in motion pictures ``(a) Assumption of Obligations. —(1) In the case of a transfer of copyright ownership under United States law in a motion picture (as the terms 'transfer of copyright ownership' and 'motion picture' are defined in section 101 of title 17) that is produced subject to 1 or more collective bargaining agreements negotiated under the laws of the United States, if the transfer is executed on or after the effective date of this chapter and is not limited to public performance rights, the transfer instrument shall be deemed to incorporate the assumption agreements applicable to the copyright ownership being transferred that are required by the applicable collective bargaining agreement, and the transferee shall be subject to the obligations under each such assumption agreement to make residual payments and provide related notices, accruing after the effective date of the transfer and applicable to the exploitation of the rights transferred, and any remedies under each such assumption agreement for breach of those obligations, as those obligations and remedies are set forth in the applicable collective bargaining agreement, if— ``(A) the transferee knows or has reason to know at the time of the transfer that such collective bargaining agreement was or will be applicable to the motion picture; or ``(B) in the event of a court order confirming an arbitration award against the transferor under the collective bargaining agreement, the transferor does not have the financial ability to satisfy the award within 90 days after the order is issued. ``(2) For purposes of paragraph (1)(A), 'knows or has reason to know' means any of the following: ``(A) Actual knowledge that the collective bargaining agreement was or will be applicable to the motion picture. ``(B)(i) Constructive knowledge that the collective bargaining agreement was or will be applicable to the motion picture, arising from recordation of a document pertaining to copyright in the motion picture under section 205 of title 17 or from publication, at a site available to the public on-line that is operated by the relevant union, of information that identifies the motion picture as subject to a collective bargaining agreement with that union, if the site permits commercially reasonable verification of the date on which the information was available for access. ``(ii) Clause (i) applies only if the transfer referred to in subsection (a)(1) occurs— ``(I) after the motion picture is completed, or ``(II) before the motion picture is completed and— ``(aa) within 18 months before the filing of an application for copyright registration for the motion picture under section 408 of title 17, or ``(bb) if no such application is filed, within 18 months before the first publication of the motion picture in the United States. ``(C) Awareness of other facts and circumstances pertaining to a particular transfer from which it is apparent that the collective bargaining agreement was or will be applicable to the motion picture. ``(b) Scope of Exclusion of Transfers of Public Performance Rights. —For purposes of this section, the exclusion under subsection (a) of transfers of copyright ownership in a motion picture that are limited to public performance rights includes transfers to a terrestrial broadcast station, cable system, or programmer to the extent that the station, system, or programmer is functioning as an exhibitor of the motion picture, either by exhibiting the motion picture on its own network, system, service, or station, or by initiating the transmission of an exhibition that is carried on another network, system, service, or station. When a terrestrial broadcast station, cable system, or programmer, or other transferee, is also functioning otherwise as a distributor or as a producer of the motion picture, the public performance exclusion does not affect any obligations imposed on the transferee to the extent that it is engaging in such functions. ``(c) Exclusion for Grants of Security Interests. —Subsection (a) shall not apply to— ``(1) a transfer of copyright ownership consisting solely of a mortgage, hypothecation, or other security interest; or ``(2) a subsequent transfer of the copyright ownership secured by the security interest described in paragraph (1) by or under the authority of the secured party, including a transfer through the exercise of the secured party's rights or remedies as a secured party, or by a subsequent transferee. The exclusion under this subsection shall not affect any rights or remedies under law or contract. ``(d) Deferral Pending Resolution of Bona Fide Dispute. — A transferee on which obligations are imposed under subsection (a) by virtue of paragraph (1) of that subsection may elect to defer performance of such obligations that are subject to a bona fide dispute between a union and a prior transferor until that dispute is resolved, except that such deferral shall not stay accrual of any union claims due under an applicable collective bargaining agreement. ``(e) Scope of Obligations Determined by Private Agreement. — Nothing in this section shall expand or diminish the rights, obligations, or remedies of any person under the collective bargaining agreements or assumption agreements referred to in this section. ``(f) Failure To Notify. —If the transferor under subsection (a) fails to notify the transferee under subsection (a) of applicable collective bargaining obligations before the execution of the transfer instrument, and subsection (a) is made applicable to the transferee solely by virtue of subsection (a)(1)(B), the transferor shall be liable to the transferee for any damages suffered by the transferee as a result of the failure to notify. ``(g) Determination of Disputes and Claims. —Any dispute concerning the application of subsections (a) through (f) shall be determined by an action in United States district court, and the court in its discretion may allow the recovery of full costs by or against any party and may also award a reasonable attorney's fee to the prevailing party as part of the costs. ``(h) Study. —The Comptroller General, in consultation with the Register of Copyrights, shall conduct a study of the conditions in the motion picture industry that gave rise to this section, and the impact of this section on the motion picture industry. The Comptroller General shall report the findings of the study to the Congress within 2 years after the effective date of this chapter.´´. (b) Conforming Amendment.— The table of chapters for part VI of title 28, United States Code , is amended by adding at the end the following: ``180. Assumption of Certain Contractual Obligations .............................. 4001´´. Sec. 407. Effective Date. [ edit ] Except as otherwise provided in this title, this title and the amendments made by this title shall take effect on the date of the enactment of this Act. Notes [ edit ] ↑ So in original. Subsections 112(e)(3) through 112(e)(10), as added by this legislation, were renumbered as 112(e)(2) through 112(e)(9) in a set of technical legislative amendments adopted in 1999. See Public Law 106-44 . Retrieved from " https://en./w/index.php?title=Digital_Millennium_Copyright_Act/Title_IV&oldid=4427254 " Category : 50% Hidden categories: Subpages Pages with override author

\n