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How the DMCA Stymies Technological Research us digital millennium copyright act 1998

How the DMCA Stymies Technological Research Jamie Condliffe 4/01/13 3:51am 9 Edit Promote Share to Kinja Toggle Conversation tools Go to permalink

The Digital Millennium Copyright Act, passed in 1998, is a fundamental piece of legislation which forms the foundation of US law regarding digital rights. It's far from perfect for consumers —but it also has a massive impact on the progress of research, too.

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Slate has a fascinating piece on the topic, written by computer security researcher Edward Felten. It does a wonderful job of shedding light on the way large corporations try to use the DMCA to strong-arm researchers into censoring their research:

Back in 2001, my colleagues and I had had to withdraw a peer-reviewed paper about CD copy protection, because the Recording Industry Association of America and others were threatening legal action, claiming that ou uxrbfcij. complaint letter to landlordr paper was a "circumvention technology" in violation of another section of the DMCA.

[I]t showed that the DMCA had become a go-to strategy for companies facing embarrassing revelations about their products... The research community saw this problem coming and repeatedly asked Congress to amend the bill that would become the DMCA, to create an effective safe harbor for research. There was a letter to Congress from 50 security researchers (including me), another from the heads of major scientific societies, and a third from the leading professional society for computer scientists. But with so much at stake in the act for so many major interests, our voice wasn't heard.

It's a reminder that, while it's easy to be outraged by broken policy when it comes to the digital rights of consumers, there's plenty, plenty more to worry about in the grand scheme of things. Go read the whole article to find out more. [ Slate ]

Filed to:  Digital Rights ,   Copyright ,   Research ,   Security ,   dmca ,  
us digital millennium copyright act 1998

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Discount Moncler on sale The owner must also swear that any information obtained through the subpoena will only be used for the purpose of protecting its rights under Section 512.

If the OSP is served with such a subpoena after or at the same time as a valid takedown notice, under Part (h)(2)(A) it must expeditiously provide the information required by the subpoena.

In 2003, the RIAA appeared to be seeking subpoenas and serving takedown notices which did not comply with these requirements, notably using the subpoena provisions for 512(a) situations, which do not provide for them.

On 20 December 2003, the DSL ISP Verizon prevailed on appeal in its case seeking to prevent the use of this section for transitory network communications, the decision reversing a court order to supply customer details. [22] The appeal decision accepted the argument that the key distinction was the location of the files, with this section applying only when the material is stored on equipment controlled by the OSP. However, in response, RIAA member labels turned to a different method to acquire their desired information. They began suing multiple "Doe" defendants at a time and issuing third-party discovery subpoenas to ISPs for the customer details.

On 6 October 2003 Charter Communications became the first cable Internet provider to challenge the RIAA use of this provision, [23] when it filed for a motion to quash the subpoenas to obtain the identities of 150 of its customers. Although Charter Communications initially lost this motion and was forced to turn over the identities of the requested customers, a later appeal ruled that the motion to quash should have been upheld. [24]

§ 512(i) Conditions for Eligibility [ edit ]

Section 512(i) outlines the general requirements for a grant of immunity– OSPs must implement an account termination policy for repeat infringers, must inform their users of this policy, and must accommodate standard copy protection systems.

It is prudent for anyone receiving a notification for distributing allegedly infringing material to check the validity of the notice and remind their ISP, if appropriate, that the DMCA only requires action under this clause for valid notices of copyright infringement. On November 26, 2014 BMG Rights Management (US) LLC and Round Hill Music LP filed suit against Cox Communications claiming that Cox was ineligible for Safe Harbor under 512 (i) based on evidence provided by Rightscorp, Inc. [25]

§ 512(j) Injunctions [ edit ]

Section 512(j) describes the forms of injunctive (i.e. court order) relief available to copyright holders. Even though OSPs have immunity from monetary damages under Section 512, they may be compelled by copyright holders, in appropriate situations, to stop providing access to infringing material or to terminate the account of a particular infringer.

§ 512(k) Definitions [ edit ]

Section 512(k) defines "service provider" and "monetary relief."

§ 512(l) Other Defenses Available [ edit ]

Section 512(l) notes that a service provider's ineligibility for a safe harbor from monetary damages under this section does not affect the validity of any other legal defenses that may be applicable (notably the CDA, although it isn’t specifically identified).

§ 512(m) Protection of Privacy [ edit ]

Section 512(m) notes that OSPs retain the protections of parts (a) through (d) even if they don't monitor their service looking for infringing activity, as long as they comply Section 512(i)'s general requirements relating to the institution of account termination policies for infringers and accommodation of copy protection systems. Furthermore, OSP's are not required to remove or disable access to material if doing so would break another law.

§ 512(n) Independent Construction of Safe Harbors [ edit ]

Section 512(n) states that the limitations on liability in parts (a), (b), (c) and (d) apply independently. Hence, the fact that an OSP qualifies for a limitation on liability under one subsection has no impact on whether the OSP qualifies for a limitation under a different subsection. This is because subsections (a), (b), (c), and (d) describe separate and distinct functions.

Criticism [ edit ]

The past decade of experience with the safe harbor provisions has shown them to be reasonably effective. [26] [27] Copyright holders have the incentive to monitor Internet sites for offending material, and to send ISPs notifications where appropriate, of material that should be taken down. ISPs have incentive to cooperate with copyright holders and terminate the accounts of repeat infringers on pain of forfeiting the safe harbor created by OCILLA. At the same time, copyright holders are deterred from improperly sending out notices by provisions that make them liable for resulting damages, and also by bad publicity.

That is not to say that OCILLA functions perfectly in practice. There are several problems resulting from imperfect incentives created by the law, from the complexity and requirements of the counter-notice procedures, and from evolving Web Technology.

Improper removal of content [ edit ]

There is some evidence that ISPs tend to quickly take down allegedly infringing content on request by copyright holders, in situations where the content is actually non-infringing and should be preserved. [28] [29] This may be because ISPs have much more to lose by forfeiting their safe harbor than by angering a user whose content is improperly removed.

Chilling Effects estimates that OSPs remove allegedly offending content even though approximately 60% of all takedown notices are flawed. Notices can be flawed in several ways. Many fail to follow the requirements of the statute. Others ask for material to be taken down for reasons such as trademark infringement and defamation that are unrelated to copyright infringement. [30]

Ineffective counter-notice procedure [ edit ]

There is evidence of problems with the counter-notice procedure, arising from its complexity and also because ISPs are not required to inform users of its existence. According to Chilling Effects , while Google has taken hundreds of sites out of its index because of DMCA requests, not a single person has filed a counter-notice or received a counter-notice from any other OSP.

This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down. This allows for copyright holders to send out take-down notices without incurring much liability; to get the sites back up, the recipients might need to expend considerably more resources. Section 512(f) makes the sender of an invalid claim liable for the damages resulting from the content's improper removal, including legal fees, but that remedy is not always practical.

Furthermore, ISP's tend to remove allegedly offending material immediately, while there is a 10- to 14-day delay before the ISP re-enables access in response to a counter-notice. For example, if a website advertised an upcoming labor protest outside BlameCo, BlameCo could send a DMCA notice to the site's ISP alleging copyright infringement of their name or logo a week before the protest. The site would then be disabled; even if the site's owners immediately filed a counter-notice, access would not be re-enabled until after the protest, too late to be useful.

ISP's may also disregard counter-notices. Section 512(g) of the DMCA shields an ISP from liability to its customer for a DMCA takedown, if the ISP restores removed content following a counter-notice. In practice, however, an ISP may disregard the counter-notice, and instead rely on its own terms of service to shield itself from liability to its customer. For example, since April 2013, YouTube refuses to restore some counter-noticed content, citing an agreement YouTube made with third-party music content owners. [31] [32]

Additionally, there is no public record of takedown requests and counter-notices. This prevents the public from seeing how the process is used. ( Chilling Effects has tried to make up for this shortcoming, but, so far, few OSPs besides Google submit their takedown notices.)

Web 2.0 and new technologies [ edit ]

There have been recent claims [33] that the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the explosion of user-generated content unleashed by Web 2.0 technologies.

Related laws [ edit ]

The European Union's Electronic Commerce directive , Article 14, contains limited liability provisions for online hosts which provide the legal basis for notice and takedown in the EU. France's Digital Economy Law ("Loi relative à l'économie numérique") is an example of an implementation of this directive, as is Finland's "Laki tietoyhteiskunnan palvelujen tarjoamisesta."

In Korea, the analogous law is Section 102 (Limitation of OSP Liabilities) and Section 103 (Takedown) of Copyright Law of Korea.

In Taiwan, Republic of China , the analogous law is Chapter VI-1 of the Copyright Act. [34]

See also [ edit ] Related US laws The "No Electronic Theft" ( NET ) Act Copyright Term Extension Act (1998) DMCA (1998) In re Aimster Copyright Litigation Amaretto Ranch Breedables, LLC v. Ozimals, Inc. References [ edit ] ^ 1996 WIPO Copyright Treaty Text ^ a b 17 U.S.C. § 512(i)(1)(A) ^ 17 U.S.C. § 512(i)(1)(B) ^ 17 U.S.C. § 512(a) ^ 17 U.S.C. § 512(b) ^ 17 U.S.C. § 512(c) ^ 17 U.S.C. § 512(d) ^ 17 U.S.C. § 512(C)(2) ^ 17 U.S.C. § 512(h)(5) ^ A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). ^ Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004). ^ a b c H.R. Rep. No. 105-551, at 53 (1998). ^ 17 U.S.C. § (512(c)(3)(A)(i-vi)) ^ 17 U.S.C. § 512(c)(1)(C) ^ 17 U.S.C. § 512(c)(3)(B)(ii) ^ Perfect 10, Inc. v. CCBill, LLC , 488 F.3d 1102, 1113 (9th Cir. 2007). ^ 17 U.S.C. § 512(g)(2)(A) ^ 17 U.S.C. § 512(c)(1)(A)(ii) ^ a b Online Policy Group v. Diebold , 337 F. Supp. 2d 1195 (N.D. Cal. 2004). ^ "Copyright, Peer-to-Peer File Sharing and DMCA Subpoenas" . Nacua Notes . 6 November 2003.   ^ "University Administrative Interests in Copyright" . Copyright Crash Course . 2007.   ^ Case documents EFF Archive of RIAA v. Verizon documents , Verizon's Previous Legal Briefs and Court Rulings . ^ Stefanie Olsen, Charter files suit against RIAA CNET News (Oct. 6, 2003). ^ In re: Charter Commc'ns, Inc. Subpoena Enforcement Matter (8th Cir. 2005). ^ "COX COMMUNICATIONS SUED FOR NOT DISCONNECTING PIRATES" . TorrentFreak . Retrieved November 28, 2014 .   ^ Pamela Samuelson et al., A Reverse Notice and Takedown Regime to Enable Fair Uses of Technically Protected Copyrighted Works , 22 Berkeley Tech. L.J. 981, 993 (2007). ^ 10 Years Later, Misunderstood DMCA is the Law That Saved the Web , Wired (Oct. 2008). ^ Julian Sanchez, Google's DMCA takedowns leaving Blogger users high and dry , Ars Technica (Mar. 8, 2009). ^ Nate Anderson, Scientology fights critics with 4,000 DMCA takedown notices , Ars Technica (Sep. 8, 2008). ^ , Ahrens, Green, McSherry and Stoltz; [1] , Center for Internet & Society Stanford Law School and Electronic Frontier Foundation (November 13, 2013). ^ McKay, Patrick (April 4, 2013). "YouTube Refuses to Honor DMCA Counter-Notices" . Fair Use Tube.org . Retrieved July 23, 2013 .   ^ "Videos removed or blocked due to YouTube's contractual obligations" . YouTube Help . April 2, 2013 . Retrieved July 23, 2013 .   ^ Brandon Brown, Fortifying the Safe Harbors: Reevaluating the DMCA in a Web 2.0 World , 23 Berkeley Tech. L.J. 437, 438 (2008). ^ Ministry of Justice (Republic of China) : Chapter VI-1 Limitations on Liability for Internet Service Providers of the Copyright Act External links [ edit ] Wikisource has original text related to this article: Online Copyright Infringement Liability Limitation Act General [ edit ] 17 U.S.C.   § 512 , Text of OCILLA U.S. Copyright Office Summary of the DMCA Chilling Effect's FAQs , about DMCA Safe Harbor Provisions U.S. Copyright Office List , of Designated Agents for Infringement Notification Using OCILLA [ edit ] DMCA Guide , with sample copyright infringement notices and counter-notices Using DMCA to Protect Your Content , Lunar Legal (June 2008) How to File a DMCA Copyright Infringement Notice , Marketingdock.com Responding to Notices of Alleged Infringement , University of Texas Case law [ edit ] Diehl v. Crook , Electronic Frontier Foundation's successful 2006 suit against an illegal takedown notice Sony Corp. of Am. v. Universal City Studios Inc. , 464 U.S. 417 (1984). Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc. , 907 F. Supp. 1361 (N.D. Cal. 1995). Costar Group, Inc. v. Loopnet, Inc. , 373 F.3d 544 (4th Cir. 2004). Online Policy Group et al. v. Diebold, Inc. , 337 F.Supp.2d 1195 (N.D. Cal. 2004). A&M Records, Inc. v. Napster, Inc. , 239 F.3d 1004 (9th Cir. 2001). Perfect 10, Inc. v. CCBill, LLC , 488 F.3d 1102 (9th Cir. 2007). Retrieved from " https://en./w/index.php?title=Online_Copyright_Infringement_Liability_Limitation_Act&oldid=787774760 " Categories : 1998 in law 1998 in the United States United States federal computing legislation United States federal copyright legislation 105th United States Congress Digital Millennium Copyright Act Hidden categories: Wikipedia articles needing style editing from August 2011 All articles needing style editing

Digital Millennium Copyright Act of 1998? How does this (meaning Digital Millennium Copyright Act of 1998) affect image management and multimedia?i cant find this answer anywhere and ive been trying to find it forever!my computer apps teacher wants everyone in the class to find it.it might be right in front of my eyes,but i must be blind.someone please... show more How does this (meaning Digital Millennium Copyright Act of 1998) affect image management and multimedia?i cant find this answer anywhere and ive been trying to find it forever!my computer apps teacher wants everyone in the class to find it.it might be right in front of my eyes,but i must be blind.someone please help me?! :( Follow 1 answer 1 Report Abuse Are you sure you want to delete this answer? Yes No Sorry, something has gone wrong. Trending Now Ariana Grande Judy Huth Penn Badgley LaLa Anthony WWE Divas Maps LiAngelo Ball Phone Plans Seniors America's Cup Credit Cards Answers Best Answer:   Im not sure what your teacher is asking but the DMCA of 1998 has to do with copyright owners being able to protect the intellectual property from being distributed without their permission.

DMCA covers from protection via program/software (ie computer programs, DRM, macrovision, etc), and provides copyright holders to issue notices to infringers. Source(s): http://en.wikipedia.org/wiki/Digital_Mil... arus.geo · 8 years ago 0 Thumbs up 0 Thumbs down Report Abuse Comment Add a comment

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