Tag Archives: DMCA

Alternet Publishes Rick Gell’s Article

Congratulations to DMLA Board Member, Rick Gell, whose thought-provoking article entitled “How Silicon Valley’s Capitalist Greed Continues to Cheat Creators and Rob American Culture has been published by Alternet.

The article, which criticizes the DMCA and CDA – two laws that he believes have hurt copyright owners and journalists, is a very interesting read for all media licensors.

You can read the article here

 

 

 

 

 

 

 

 

Important Section 512 Survey

DMLA has been actively participating in a study initiated by the Copyright Office on the impact and effectiveness of the Digital Millennial Copyright Act (DMCA) safe harbor provisions contained in Section 512 of the Copyright Act. The safe harbor offers qualified Internet Service Providers (ISPs) immunity from monetary damages for hosting infringing content if the ISP expeditiously removes the content after receiving a proper notice. DMLA has provided responses to past Notices of Inquiries and attended round table hearings on this subject. The Copyright Office is now seeking additional comments and is specifically inviting parties to submit empirical research.

As this is such an important issue, DMLA plans to respond and has adapted for DMLA members and their contributors an online survey prepared by the Copyright Alliance for small creators to determine if this “notice and take down” procedure of the safe harbor is being used, how difficult it is to use, and how successful it is in having infringing content removed. The survey is short and should not take long to complete. We encourage all members to participate and send it to their contributors to build a large response pool. If copyright law is to improve, we need to have hard data on what is working and what is not.

If you haven’t filled out your responses yet, please do so.  The more responses we receive the better data we will be able to supply to the Copyright office.  You will find the survey here.

Deadline for completion is February 17, 2017.

DMCA Takedown Notices Require Fair Use Considerations

Nancy Wolff and Josh Wolkoff, Cowan DeBaets Abrahams & Sheppard, LLP

Lenz v. Universal Music Corp., Case Nos. 13-16106 and 13-16107, in the United States Court of Appeals for the Ninth Circuit.

The Digital Millennium Copyright Act (DMCA) was enacted in 1998 to address in part issues created by the internet and the widespread posting of content by users. In reforming the Copyright Act in 1978, the drafters thought that this Act would serve well into the future as it was content neutral but they could not foresee the way the Internet dramatically altered the way users exchanged content online and how perfect copies of copyrighted content could be virally distributed in seconds. Internet service providers (ISPs) were concerned with strict liability and monetary damages based on content posted by users and hosted on their servers over which they could not monitor and control. Section 512 of the Copyright Act was enacted to balance the concerns of ISPs and copyright owners. Qualified ISP were granted immunity from liability if they received a proper notice of infringement and expeditiously removed the infringing content.

There has been much litigation over the years regarding various aspects of the DMCA, including whether a copyright owner is required to consider whether the use made of the uploaded content is considered a fair use and not an infringement before issuing a takedown notice. Because of the massive amount of content uploaded by users, and the difficulty to search the ever increasing number of sites, content owners, including the music industry, employ technology to crawl the internet to find unlicensed content in order to end the ISP the requisite takedown notice.

A test case was brought in 2007 by Stephanie Lenz, a mother who sued Universal Music Group after YouTube removed a 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” in response to a DMCA takedown notice submitted by Universal Music Group, Prince’s music publisher. Not surprisingly, the Electronic Frontier Foundation, a pro user group supported Lenz in bringing this test case. Dubbed the “dancing baby case,” Lenz argued that her video was protected by the doctrine of fair use and that Universal’s takedown notice violated a section of the DMCA that provides liability for knowingly making material representations because it misrepresented that the video was infringing without considering fair use . Under the DMCA, a proper takedown notice must include a statement that the owner or its agent has a “good faith belief” that the use of the copyrighted work is not authorized under the law.

The case ultimately made its way to the Ninth Circuit Court of Appeals. An appeal the court was asked to examine whether fair use was a right under copyright and an authorized use, or a defense to infringement and unauthorized. In a significant ruling to content owners and ISP’s, the court issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content under the DMCA. The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube. The court explained that fair use must be treated differently than other affirmative defenses because fair use is not merely an exception to an infringement – it is one that that is expressly “authorized by law” under Section 107 of the Copyright Act.

The Ninth Circuit took great pains, however, to qualify the thrust of its ruling, suggesting that it was “mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age.” In particular, a sender must only form a “subjective good faith belief” that the use is not a fair use or not authorized under the law. The inquiry “need not be searching or intensive” and, in fact, the Court recognized the role that computer algorithms and automated programs might play in making such fair use determinations and issuing proper takedown notices. The Ninth Circuit also confirmed that the question of liability for material misrepresentations does not hinge on whether or not the use is indeed a fair use: courts are “in no position to dispute the copyright holder’s belief even if [the court] would have reached the opposite conclusion.”

As a result content owners should review their notice and takedown procedures in order to ensure that their procedures give due consideration to potential fair uses. DMLA, in watching this case over the years, revised the declaration in its DMCA notice to include reference to a fair use review: I have a good faith belief that use of the material in the manner complained of herein is not authorized by COPYRIGHT HOLDER, its licensing representatives, or the law and is not a fair use.

Even if using recognition technology to find infringing uses, someone should review the use to determine if the use is a fair use or not. As fair use is determined on a case by case basis, and in not the easiest area of the law, the determination just needs to be made in good faith. As noted by the Ninth Circuit, it is not a material misrepresentation if a court might come out differently. Fair use is a judgment call after weighing the requisite four factors. DMLA has a webinar on fair use found here and the Copyright Office has published an index of fair use cases [http://copyright.gov/fair-use/]