CyberLaw Blog

Archive for the ‘DMCA’ Category

Hezbollah sting bust sees first phone-unlock DMCA conviction: “

Mass terrorist jailbreaking not same as fanboi freedom

A Philadelphia federal court has accepted a guilty plea from one Mohamad Majed, who admitted breaching the Digital Millennium Copyright Act in unlocking thousands of phones for resale.…

“

(Via The Register – Public Sector.)

Summary judgment confirms ’safe harbour’ protection for YouTube | Pinsent Masons LLP

OUT-LAW News, 24/06/2010

YouTube is protected by the safe harbour provisions of US copyright law and is not guilty of copyright infringement when users post unauthorised videos to the site, according to the US court hearing a $1 billion suit brought by media giant Viacom.

YouTube only becomes liable for copyright infringement once a copyright owner tells it of specific illegal files, the court said, giving summary judgement in YouTube’s favour.

Viacom filed the lawsuit in 2007, claiming that Google-owned YouTube’s business was based on copyright infringement and that, knowing that the site was full of copyright violations, it profited from the unauthorised use of its copyrighted material.

The US District Court for the Southern District of New York has ruled, though, that YouTube only becomes liable for infringement once it has been told of specific videos that infringe specific copyrights and fails to act to remove them from its site.

Like European Union law, US law the Digital Millennium Copyright Act (DMCA) allows online service providers to avoid liability for their users’ law-breaking actions and absolves them of any burden to monitor their service for infringements of the law.

Once companies are told of law-breaking, though, they must act quickly to disable, remove or block the content or become liable, the safe harbour provisions of the DMCA say.

Viacom argued that Google did not deserve safe harbour protection because it knew that, in a general sense, infringement was taking place on a massive scale.

‘[Google is liable] for the intentional infringement of thousands of Viacom’s copyrighted works, … for the vicarious infringement of those works, and for the direct infringement of those works,’ said the Court’s ruling, quoting from Viacom’s case. ‘[Google] had ‘actual knowledge’ and were ‘aware of facts and circumstances from which infringing activity [was] apparent’ but failed to ‘act expeditiously’ to stop it.’

Viacom said that Google profited from YouTube’s carrying of copyrighted material and had it in its power to stop infringement but did not do so, and was therefore liable for the infringement.

The Court said that what it had to decide was whether Google had to have notice of specific infringements before it was forced to remove videos or whether a ‘general awareness’ of infringing activity was enough to make it liable if it failed to remove material from its service.

The Court outlined the thoughts of committees from the US’s two parliamentary chambers and said that they indicated that specific knowledge of individual infringements was what a company needed to have before it became liable for those infringements.

‘The tenor of the foregoing provisions is that the phrases ‘actual knowledge that the material or an activity’ is infringing, and ‘facts or circumstances’ indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items,’ said the ruling. ‘Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries.’

The Court said that Viacom can have no quibble with how YouTube’s current system operates.

‘The present case shows that the DMCA notification regime works efficiently,’ the ruling said.
‘When Viacom over a period of months accumulated some 100,000 videos and then sent on mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.’

The Court said that previous cases made it clear that the responsibility to find and identity infringing material was the copyright holder’s, not the online service provider’s. ‘If a service provider knows (from notice from the owner, or a ‘red flag’) of specific instances of infringement, the provider must promptly remove the infringing material,’ it said.

‘If not, the burden is on the owner to identify the infringement. General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements,’ the ruling said.

Judge Louis Stanton rejected Viacom’s claims that YouTube was like file sharing software publishers such as Grokster or Lime Wire and that the same legal principles should apply in this case as did in successful actions against those companies.

Those companies distributed software ‘with the expressed intent of succeeding to the business of the notoriously infringing Napster’, Stanton said in his ruling. YouTube, on the other hand, provided a platform for content and removed infringing material when informed about it.

The Court gave a summary judgment in Google’s favour on all the points it considered, and told the companies to consult with each other on whether any disputes had been left unresolved by the ruling.

Web hosts face payout as jury says they should have known about customers’ infringement: “Two web hosting companies have been ordered to pay $32 million in damages after failing to convince a US jury that they were immune from responsibility for their users’ actions.”

(Via OUT-LAW News.)

Amazon using DMCA to restrict Kindle content sources: “

Oh, Amazon. Just a couple weeks after the Authors Guild’s overzealous copyright-maximalist stance forced the bookseller to modify the Kindle 2’s text to speech feature, the company’s lawyers have had a fit of irony and sent out a DMCA takedown request to MobileRead, claiming that the site’s links to a Python script that enables Kindle owners to shop at Mobipocket-format ebook sites constitutes circumvention of the Kindle’s DRM. There’s all kinds of corporate-lawyer idiocy at play here: MobileRead was just linking out to another site hosting the script, which can’t actually be used to break Kindle DRM, and the only people using it are the people who want to buy more books — not exactly the sort of customers you’d want to piss off. Amazon’s sole motivation here seems to be the fear that people might buy Kindle content from somewhere besides Amazon, and it appears to be using copyright law to try and prevent that. Another corporation driven mad with DRM power? Say it ain’t so.

[Via TechDirt]

Filed under: Handhelds

Amazon using DMCA to restrict Kindle content sources originally appeared on Engadget on Fri, 13 Mar 2009 16:48:00 EST.

(Via Engadget.)

Mozilla, Skype support DMCA jailbreaking exemption: “The Mozilla Corporation and Skype Communications have both filed papers in support of a proposed DMCA exemption for the jailbreaking of smartphones.

(Via Macworld.)

The updated EFF report entitled Unintended Consequences: Ten Years Under the Digital Millennium Copyright Act which assesses the problematic application of the notice & takedown provisions of the US legislation is definitely worth reading. [Yaman Akdeniz]

EFF Marks 10th Anniversary of DMCA with Report on Law’s Unintended Consequences | Electronic Frontier Foundation

October 27th, 2008
EFF Marks 10th Anniversary of DMCA with Report on Law’s Unintended Consequences
Ten-Year Legacy of Harm to Fair Use, Free Speech

San Francisco – Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.

‘Unintended Consequences: Ten Years Under the DMCA’ focuses on the most notorious aspect of the law: its ban on ‘circumventing’ digital rights management (DRM) and ‘other technical protection measures.’ Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. ‘Unintended Consequences’ collects reports of the law’s most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.

‘Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it’s been a decade of costs, with no benefits,’ said EFF Senior Intellectual Property Attorney Fred von Lohmann. ‘The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn’t like. It’s time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws.’

For ‘Unintended Consequences: Ten Years Under the DMCA’:
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

For more on the DMCA:
http://www.eff.org/issues/dmca

(Via Techdirt.)

The Web Thrived In Spite Of The DMCA, Not Because Of It: “While I was pointing out all of the reasons why the DMCA needs to be re-examined from scratch, Wired has put up an article detailing the one single positive aspect of the DMCA: the safe harbor provisions that protect service providers from liability for copyright infringement done by users. However, I think Wired, and the various people quoted in the article, give way too much credit to the DMCA for a variety of reasons. In fact, Wired goes way too far in claiming that the DMCA ’saved’ the web and allowed it to become what it is today, suggesting (incorrectly) that things like blogs and YouTube wouldn’t be successes without the DMCA.

First, the claim by an MPAA representative that without the DMCA movie studios wouldn’t have moved to DVDs is, at best, stretching the truth. While some studios would have been nervous, it wouldn’t have taken long for some studios to more aggressively experiment with DVDs, and early success would have made studios unwilling to hold back. Besides, it’s not as if the DMCA has actually done anything to protect DVDs. DVD ripping software is widely available.

As for the safe harbor provisions, there’s plenty of reason to believe that we would have reached the same legal situation even without the DMCA’s safe harbors. Two years prior to the DMCA, the CDA was passed, and while pretty much all of that law was thrown out as unconstitutional, the bit that remained was the famous section 230, which provides a very similar safe harbor for non-copyright issues. It’s not difficult to believe that in the absence of a DMCA, section 230 would have been expanded to cover copyright. And, even if section 230 wasn’t extended explicitly, one would hope that the courts would have established the exact same precedent by noting how ridiculous it is to blame a service provider for the actions of its users. The fact that we even need safe harbor provisions is ridiculous. It should be common sense that liability should be placed on the actual party to do the action, rather than any service provider that was used in the process.

Finally, Wired talks up the whole notice-and-takedown process, which has been a tremendous burden for many sites. While Wired does highlight how the notice-and-takedown process has been regularly abused, it still gives too much credit to the whole system. If Congress really had to have a formal takedown process, it makes perfect sense to have a notice-and-notice system, where the accused infringer would have a chance to respond to the charges before the content is taken down (innocent until proven guilty, blah blah blah).

So, yes, the safe harbors provided by the DMCA are a good thing — but to extrapolate from that and a few other questionable points that the DMCA is responsible for the rise of things like blogging and YouTube is hard to square with reality. It’s quite likely that things wouldn’t be all that different in the absence of the DMCA — except we’d have a lot fewer abuses of it.