Digital Millennium Copyright Act
Introduction
The Digital Millennium Copyright Act (DMCA) refers to a US copyright policy, which implements two treaties of World Intellectual Property Organization (WIPO) of 1996. The act illegalizes the production and dissemination of devices, technology, or services intended to evade measures that regulate the access to copyrighted works. The act also illegalizes the act avoiding an access control, whether there is, or there is not , an actual violation of the copyright itself. Moreover, the Digital Millennium Copyright Act intensifies the penalties for copyright violation on the World Wide Web. Bill Clinton signed the act into on October 12, 1998. The Act amended title 17 of the US codes to widen the reach of the copyright, whereas restraining the liability of the online service providers for copyright violation by their users. According to Bielefield & Cheeseman (2007), the European Union adopted the principal innovation of DMCA in the field of copyright, which is the exemption from indirect and direct liability of providers of online services and other intermediaries, in the Electronic Commerce Directive 2000. This paper discusses the tiles of the Digital Millennium Copyright Act. It also discusses five legal cases linked to the Digital Millennium Act.
Online Copyright Infringement Liability Limitation Act
This is the second title of the DMCA. According to Bohn (2005), this title adds a new section 512 to the copyright act in order to produce four new restraints on the liability for the copyright violation by providers of online services. According to Einhorn (2004), the restraints or limitation are based on four different categories of conduct by providers of online services. The categories include transitory communication, system caching, storage of information on networks or systems at direction of users, and information location tools.
The new section 512 also accommodates the special rules about the application of these restraints o nonprofit institutions of education. Every limitation necessitates a comprehensive bar on monetary damages and restrains the availability of injunctive relief in different respects. Goldstein & Hugenholtz (2012) highlighted that every limitation has an association to a different and separate function. In addition, the willpower of whether a provider of online service qualifies for one of the limitations does not depend upon willpower of whether the online service provider qualifies for one of the other three.
The inability of an online service provider to qualify for one of the limitation in section 512 does not essentially make it responsible for copyright violation (Hansen, 2006). The owner of the copyright needs to demonstrate that the provider has violated, and the service provider might still make it available of any other defenses, like fair use, which are generally available to defendants of copyrights. Besides limiting the legal responsibility of the online service providers, the Online Copyright Infringement Liability Limitation Act specifies a procedure by which the owner of the copyright can acquire a subpoena from a federal court. In this case, the subpoena orders the provider of online service to reveal the identity of a subscriber who is purportedly engaging in violation activities.
According to Lucke (2010), section the Online Copyright Infringement Liability Act also contains a provision to guarantee that providers of online services are not placed in the position of choosing between preserving the privacy of their subscriber on one hand and limitations on legal responsibility on the other. Subsection (m) of the Online Copyright Infringement Liability Act explicitly highlights that nothing in section 512 necessitates the provider of online service to monitor its services or access material in infringement of law in order to qualify for any of the legal responsibility limitations.
Eligibility for Limitations Generally
According to Macmillan (2007), an individual seeking to benefit from the limitations specified in the Online Copyright Infringement Liability Act must be an eligible ‘service provider’. In association with the transitory communication, and for the purposes of the first limitation, ‘service provider’ refers to an entity offering the transmission, routing, connection for digital online communications, among or between points required by the user without the modification to the content of the material received or sent. However, for the intentions of the other three limitations, service providers refer to a provider of online network access or services, or the operator of facilities therefore.
Besides being eligible for one of the limitations, service providers must fulfill two general conditions. The first condition is that the service provider must reasonably implement and adopt a policy for concluding, in proper circumstances, the accounts of subscribers who are repeat violators. The second condition that must be fulfilled by the service providers is accommodating and not interfering with the standard technical measures. According to Nimmer (2003), standard technical measures refer to measures, which owners of copyright deploy in identifying or protecting copyrighted property developed pursuant to a broad agreement of owners of copyright and service providers in a fair, open and voluntary multi-industry process.
Limitation for Transitory Communication
In broad spectrum, section 512 (a) restricts the liability of providers of services in scenarios where the provider purely acts as a data conduit that transmits digital information from one point on a network to another point at the request of another person. According to Prasad & Agarwala (2009), this limitation covers the acts of transmission, routing or providing connection for the information. According to Rimmer (2007) the limitation also covers the momentary or intermediate copes, which are made automatically in the operation of a network.
In order to be eligible for this limitation, the activities of providers of services must meet five conditions (Spindler & Börner, 2002). The first condition is that the transmissions need to be initiated by an individual other than the provider. The second condition is that the transmission, provision of connection, routing, or copying need to be carried out by an automatic technical process without the selection of material by the service provider. The third condition is that the provider of service needs to determine the recipients of the material being transmitted. The fourth condition is that any intermediate copies need not to ordinarily be accessible to anyone other than the expected recipients. In addition, the intermediate copies must be retained for longer than sensibly necessary. The last condition that service provides must fulfill is that the material being transmitted should be free of any modification to its content (Tehranian, 2011).
Limitation for System Caching
Section 512 (b) limits the legal responsibility of service providers for the practice of holding copies of material that has been availed online by an individual other than the provider, and then transmitted to a subscriber at his or her direction. The provider of service retains the material so that ensuing requests for similar material can be fulfilled by transmitting the retained copy, instead of retrieving the material from the original source on the network (Štrba, 2012).
According to Weinstock (2008), the significance of this practice is that it tends to reduce the bandwidth requirements of the service providers. This practice also reduces the waiting time on ensuing requests for similar information. On the contrary, this practice can lead to the delivery of outdated information to subscribers and it can deprive operators of websites of accurate information concerning number of requests from a certain material on a website. Because of this reason, the individual availing the material online might specify the rules concerning updating it, and might deploy technological means to track the number of requests.
The limitation is applicable to acts of temporary and intermediate storage, when performed through an automatic technical process for making the material available to subscribers who consequently ask for it (USA International Business Publications, 2007). The limitation is a subject to various conditions. The first condition is that the substance of the retained material should not be modified. The provider of the service must comply with the rules concerning replacing the retained copies of material with material from original location. The service provider must not hamper with the returns the information concerning the number of requests to the individual who posted the material, especially where the technology fulfills certain requirements. According to U.S. Copyright Office (1998), the provider should limit the access of users to the material in agreement with the condition on access imposed by the individual who posted the material. The last condition is that any material posted with the authorization of the copyright owner must be blocked or removed immediately. The removal or blocking of the material should take place after the service provider has been notified that it has been blocked, removed or ordered to be blocked or removed at the site of origination.
Limitation for information residing on Networks or Systems at User Direction
Section 512 (c) restricts the legal responsibility of service providers for violating material on websites hosted on their systems (U. S. Copyright Office, 2012). This limitation is applicable to the storage the user’s direction. In order to qualify for this limitation, three conditions need to be fulfilled. The first condition is that the provider needs not to have the obligator knowledge level of the violating activity. If the service provider has the ability and right to control the violation activities, then it must not receive any financial benefit that is straightforwardly attributable to the violation activity. The last condition is that upon the reception of proper notification of the claimed violation, the service provider must expeditiously block or take down the access to the material. Besides, any provider of service must have filed with the Copyright Office.
Limitations for information Location Tools
Section 512 (d) is concerned about hyperlinks, search engines, and online directories among others (Tehranian, 2011). This section limits the legal responsibility for the acts of linking or referring users to a website containing violating materials by deploying such information tools. There are various conditions to be met in order to benefit from this liability. The service provider need not to have the obligatory knowledge that the material is violating. The standard of knowledge is similar as under the limitation for information residing on networks or systems. If the service provider has the ability and right to regulate the violating activities, then it must not receive any financial benefit that id directly attributable to the activity. The service provider must expeditiously block or take down access to the material upon the reception of a notification claimed infringement. According to U.S. Copyright Office (1998), these conditions are essentially similar under the previous limitation, with some minor differences in the requirements of notifications.
Computer Maintenance Competition Assurance Act
This act extends the existing exception associated with the computer programs in section 117 of the Copyright Act that permits the owner of the program copy to make adaptation and reproductions when necessary (Nimmer, 2003). The act allows the lessee or owner of a computer to authorize the making of a copy of a computer program in the course of repairing or maintain that computer. According to U.S. Copyright Office (1998), the exception only allows a copy made automatically upon the activation of a computer, and only if the computer already and lawfully contains an authorized program copy. The Act also stipulates that the copy of the computer program cannot be used in any other way and must be immediately destroyed after the repair or maintenance is completed.
Digital Rights Management
Digital rights management (DRM) refers to a category of controversial technologies of access control used by hardware manufacturers, copyright owners, publishers and individuals with the intention of limiting the use of digital devices and content after sale. According to the U. S. Copyright Office (2012), DRM refers to any technology inhibiting the uses of digital contents that are not intended or desired by the provider of the content. DRM also comprises of unambiguous instances of digital devices or works. Companies like AT&T, Amazon, Google, Apple Inc., and Sony and Electronic Arts use DRM.
However, the use of DRM is not universally acknowledged. The critics of DRM claim that DRM is only necessary in fighting copyright violation online. Some individuals have also claimed that DRM can assist copyright owners maintain artistic control or guarantee sustained revenue streams. The proponents have also argued that the management of digital rights need to be considered essential in order to inhibit the copying of intellectual property freely. The opponents have contended that there is no evidence that digital rights management assists in preventing copyright violation (Einhorn, 2004). As such, the opponents have argued that DRM only inconveniences lawful customers, and that it helps big businesses suppress competition and innovation.
According to Bohn (2005), DRM technologies try to offer control to the sellers of digital contents and devices after selling. DRM technologies can be perceived in two different ways, which is in terms of digital content and in terms of digital devices. In terms of digital content, this implies denying the buyer of the digital content the capability of converting the content to other media formats or copying the media content. In terms of devices, DRM technologies imply limiting the consumers on the hardware that can be used with device or software. Initially, before the dawn of electronic or digital media, copyright owners and content producers has legal and business objection to copying technologies.
The advent of conversion technologies, particularly those used usable on mass-market general-purpose personal computers has hugely increased the worries of copyright-dependent organizations and individuals, particularly within the movie and music industry (Bohn, 2005). This is because such individuals and organizations are wholly or partly reliant on the revenue generated from such works. Whereas analog media unavoidably depreciates in quality with the generation of each copy, digital media might be copied from an unlimited number of times without depreciation in quality. The arrival of personal computers, as household devices, has increased the consumers’ convenience to convert media from one form to another. The advent of personal computers, combined with the popular file sharing tools and the internet, has resulted in unauthorized distribution of copyrighted digital content,
According to Bielefield & Cheeseman (2007), DRM technologies allow the publishers of content to implement their own access policies on content. Such policies include restriction on viewing or cpying, in scenarios where copying is prohibited, irrespective of whether or not the copying is legally considered a fair use, these technologies have come under fire.
Legal Cases Related to Digital Millennium Copyright
The first legal is Viacom Inc. V YouTube, Google Inc. Viacom Inc filed a case against YouTube and its father company, Google Inc. for copyright violation seeking more than one billion US dollars as a compensation for the damages (Štrba, 2012). This lawsuit was filed in US District for the Southern District of New York. According to Viacom, YouTube was engaging in massive and intentional violation of copyright by making available about 16000 contended video clips of the Viacom’s entertainment programming. Google depended significantly on the provisions of Digital Millennium Copyright Act to shield itself from the liability. The case was ruled in favor of YouTube. The court maintained that YouTube is safeguarded by the safe harbor of the Digital Millennium Copyright Act. Viacom filed an appeal before the US Court of Appeals for the Second Circuit. The Court of Appeal held that Viacom present substantial evidence against YouTube to deserve a trial. However, the court still upheld that YouTube could be held legally responsible based on general knowledge that users on its site were violating copyright.
The second legal case is Vernor v. Autodesk. After several DMCA takedown notices in reaction to the eBay listings, Timothy Vernor sued Autodesk, Inc. claiming that the company disrupted his right to sell used software that the company abused DMCA. The judge of the Federal District Court in Washington State dismissed the argument of Autodesk that the license agreement of the software preempted the seller from his rights under the first-sale policy. In 2010, the Court of Appeals, for the ninth circuit, reversed stating that the user of the software is licensee rather than an owner of a copy.
The third legal case is IO Group, Inc. v. Veoh Networks, Inc. IO Group filed a legal complaint against Veoh Networks in the US District Court for California’s Northern District. IO Group claimed that Veoh was liable for copyright violation by allowing its videos to be accessed via Veoh’s online service without its permission. The case was filed on June 23, 2006. Veoh is website for flach video that relies on content contributed by users. IO Group argued that because Veoh transcoded user uploaded videos to Flash format, it became a straightforward violator and the contents were under their direct control. IO Group’s argument was meant to make Veoh ineligible for the DMCA safe harbor protection. The court disagreed with the judgment by stating the Veoh had established a system whereby software automatically processes content submitted by user and recasts it in a format readily accessible to its users. The court granted Veoh’s motion for summary judgement, based on DMCA, stating that the video sharing website conformed to and was entitled to the protection of law’s safe harbor provision. Despite Veoh winning the case, it censured the litigation as one of the causes of its preparing to file Chapter 7 (USA International Business Publications, 2007).
The fourth case is Flava Works Inc. v. Gunter. In this case the court denied the defendant the protection of safe harbor under DMCA. The court revealed that the defendant was aware of its users’ violating activity, and also failed to inhibit future violating activity. As a result, the motion of the plaintiff for preliminary injunction was decided. However, the seventh circuit left out the injunction, stating the standard set in eBay Inc. v. MercExchange, LLC. The standard states that courts need not to depend on the categorical rules as a standard for injunction (USA International Business Publications, 2007).
The fifth court case is Sony v. George Hotz. Sony Computer Entertainment litigated George Hotz for infringing section 1202 of the DMCA, as well as Federal Fraud and Abuse Act because of enabling consumers to jailbreak their PS3 consoles. According to Hotz, he was entitled to anything to the product because he had bought it. However, Hotz and Sony decided to settle things out of the court. In addition, this resulted in the injunction against Hotz, barring him from hacking more products of Sony.
Comparison between UAE and Australian Copyright Laws
In the UAE, the author or copyright owner shall have the limited right to license the use of their intellectual property, via any means, especially reproduction, including electronic loading and storage (Bohn, 2005). The copyright owner can also use any form of representation, public performance, broadcasting or rebroadcasting, translation, modification, leasing, lending, alteration or any form of publication.
However, in Australia, copyright is automatic and free upon the creation of an intellectual property. Generally, the copyright owner will be the author, especially for musical, dramatic, and artistic works, or producer, especially for films and recordings. Under the Australian Copyright law, where an employee is the author, the first copyright owner is the employer. According to Bohn (2005), this is slightly different for UAE copyright law. Unlike in the UAE, a copyright notice (©) is not necessary on a work to gain copyright. However, only the owner of the copyright is entitled by the law to place a notice.
Recommendations and Conclusions
The first recommendation is the establishment of electronic DMCA agent registry. The US Copyright Office needs to establish the an updated electronic DMCA. This registry should be availed to the public at large. Presently, it registry seems to be outdated and details of some DMCA agents of some websites cannot be found. Some of these agents claim to be conforming to the Act, when they are not. In addition, such database should user friendly and easy to navigate. The second recommendation is the establishment of website norms. Many of the US websites are not conforming to DMCA norms. However, these websites claim the DMCA protection. Foreign states cannot do much in such scenario. This is because filing a case in US is counterproductive small causes and cases. The US websites need to follow absolutely and clearly the requirements of DMCA. The DMCA information should also be provided. US websites are not offering enough information concerning DMCA agents and their contact details. Some of these websites have also not registered a DMCA agent with the US copyright office. Such websites should offer clear DMCA related information. The Digital Millennium Copyright Act intensifies the penalties for copyright violation on the World Wide Web. This title adds a new section 512 to the copyright act in order to produce four new restraints on the liability for the copyright violation by providers of online services. Digital rights management (DRM) refers to a category of controversial technologies of access control used by hardware manufacturers, copyright owners, publishers and individuals with the intention of limiting the use of digital devices and content after sale.
References
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