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Copyright Corner

Tag: DMCA

2018 DMCA Section 1201 Exemptions Announced

March 20, 2019 / / Comments Off on 2018 DMCA Section 1201 Exemptions Announced

On October 26, 2018, the Librarian of Congress issued the final rule for the current exemptions to the section of the Digital Millennium Copyright Act that prohibits circumvention of technological measures that control access to copyright protected works. We have written before about this area of the law and the rulemaking process involved (see our post on the previous exemptions from the last triennial proceeding in 2015).

The Prohibition against Circumvention under Section 1201

Section 1201(a) of U.S. Copyright Law prohibits the circumvention (e.g., descrambling, decryption, or removal) of a technological measure employed on or behalf of a copyright owner that effectively controls access to the copyright protected work. In order to ensure that non-infringing uses of copyrighted works are not unnecessarily inhibited by the prohibition on circumvention, however, a rulemaking session is held every three years to identify exemptions for particular classes of works.

Exemptions are determined by the Librarian of Congress, upon recommendation from the Register of Copyright, and remain in effect for three years.[1] There is no presumption that that a previously adopted exemption will be readopted, but new to the seventh triennial proceeding was the introduction of a streamlined process to renew exemptions adopted in 2015.

2018 DMCA Exemptions

On October 26, 2018, the final rules from the most recent triennial proceeding were announced.[2] The final rule includes exemptions covering 14 classes of works. We have created a chart to summarize all of the exemptions for this rulemaking proceeding. Exemptions include:

  1.  Short portions of motion pictures (including television shows and videos) for purposes of criticism or comment;
  2.  Motion pictures (including television shows and videos), for the purpose of adding captions and/or audio descriptions by disability services offices or similar units at educational institutions for students with disabilities;
  3.  Literary works, distributed electronically, protected by TPM interfering with screen readers or other assistive technologies;
  4.  Literary works consisting of compilations of data generated by patient’s implanted medical devices and personal monitoring systems;
  5.  Computer programs that that operate cellphones, tablets, mobile hotspots, and wearable devices to allow connection to a wireless network (“unlocking”);
  6.  Computer programs that operate smartphones and all-purpose mobile computing devices, to enable interoperability or removal of software applications (“jailbreaking”);
  7.  Computer programs that operate smart TVs for the purpose of enabling interoperability with computer programs on the smart television;
  8.  Computer programs that enable voice assistant devices to enable interoperability or removal of software applications;
  9.  Computer programs contained and controlling function of motorized land vehicles to allow diagnosis, repair, or modification of a vehicle function;
  10.  Computer programs that control smartphones, home appliances, or home systems to allow diagnosis, maintenance, or repair of the device or system;
  11.  Computer programs, for purposes of good-faith security research;
  12.  Video games in the form of computer programs, where outside server support has been discontinued, to allow individual play and preservation by an eligible library, archive, or museum;
  13.  Computer programs, except videos games, no longer reasonably available in commercial marketplace, for preservation by eligible libraries, archives, and museums; and
  14.  Computer programs operating 3D printers, to allow use of alternative feedstock.

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Copyright Roundup, Part III

July 19, 2016 / / Comments Off on Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

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New DMCA Exemptions

December 30, 2015 / / Comments Off on New DMCA Exemptions

Update: This blog post provides a summary of exemptions announced in 2015 as part of the sixth triennial rulemaking proceeding. The post “2018 DMCA Section 1201 Exemptions Announced” provides a summary of the exemptions currently in force (October 2018 – October 2021).

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) to implement the terms of two international treaties: the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. Included in the DMCA is a provision that prohibits individuals from circumventing access controls that have been placed on copyrighted works. Every three years the Librarian of Congress engages in a rulemaking process to carve out exemptions to this general prohibition. This blog will look at the most recent exemptions, with particular focus on the exemptions most likely to impact teaching and learning activities of faculty, staff, and students.

Section 1201: Prohibition Against Circumvention

Section 1201(a) of the U.S. Copyright Law prohibits individuals from circumventing technological protection measures (TPMs) that are in place to effectively control access to a copyrighted work. Under this anti-circumvention rule, a person could face civil and in some cases criminal penalties for bypassing, decrypting, descrambling, removing, deactivating, impairing, or otherwise avoiding protection measures that are commonly placed on all types of media, if the circumvention is done without the authority of the copyright owner. These penalties may exist even if the circumvention is done to access and use a work in a non-infringing manner (e.g., making a fair use of the work).

Every three years, however, the Librarian of Congress identifies classes of copyrighted works that may be exempt from this anti-circumvention rule. Exemptions are based on recommendations from the Register of Copyrights and are valid only for a three-year period. At the end of the three year period, the exemption expires, unless successfully renewed in the next rulemaking cycle. Exemptions cover classes of works for which the Librarian of Congress has determined non-infringing uses of the work would be adversely affected by the circumvention prohibition.

2015 DMCA Exemptions

On October 28, 2015, the final rules from the most recent triennial proceeding were announced.[1] The final rules included a total of ten exemptions (a summary of all of the exemptions may be found here):

  1. Motion pictures (including television shows and videos)
  2. Literary works, distributed electronically, protected by TPM interfering with assistive technologies
  3. Computer programs that enable devices to connect to a wireless network (“unlocking”)
  4. Computer programs on smartphones and all-purpose mobile computing devices (“jailbreaking”)
  5. Computer programs on smart TVs (“jailbreaking”)
  6. Vehicle software to enable diagnosis, repair, or modification
  7. Computer programs to enable good faith research of security flaws
  8. Video games requiring server communication
  9. Software to limit feedstock of 3D printers
  10. Patient data from implanted networked medical devices

As seen in previous rulemaking proceedings, the final exemptions are narrowly crafted, coming with restrictive details on their appropriate application.  A few of the exemptions, however, may provide useful for the educational activities undertaken by faculty, staff, and students of the University.

Motion pictures (including television shows and videos): This exemption is similar to the exemption granted in the previous rulemaking process. Under this exemption, non-circumventing screen capture software may be used to copy short portions of lawfully acquired motion pictures. These short portions must be used for the purposes of criticism or comment and may only be used in a limited number of specific settings, including use by college and university faculty and students for educational purposes. Short portions may also be used by faculty of MOOCs (provided other restrictions are met) and educators and participants in face-to-face nonprofit digital and media literacy programs offered by libraries and museums.

In some situations, screen capture technology may not be capable of capturing the level of high-quality detail needed for commentary or criticism. For these situations, circumvention may be permitted by college and university faculty and students, but only for film studies or other courses requiring close analysis of film and media excerpts. Circumvention in these situations is also limited to circumvention of TPMs on DVDs protected by Content Scrambling System, Blu-ray videos protected by Advanced Access Control System, or digital transmissions. As with screen capturing, mentioned above, only short portions of the motion picture can be used and only for the purpose of criticism or comment.

Literary works, distributed electronically, protected by TPM interfering with assistive technologies: This exemption permits a blind or other person with disability to circumvent TPMs on e-books when those TPMs interfere with read-aloud functionality or other assistive technologies. Copyright owners must be appropriately remunerated for the price of the mainstream copy of the work. This exemption was a renewal of a 2012 exemption and received no opposition.

Video games requiring server communication: This exemption permits circumvention of lawfully acquired video games when access to an external server that is needed for local gameplay is no longer provided. Circumvention must be made solely for the purpose of restoring access for personal gameplay or to allow preservation of the game by eligible libraries, archives, or museums.[2]

Software to limit feedstock of 3D printers: This exemption permits the circumvention of computer programs in 3D printers in order to use alternative feedstock. The exemption does not extend to 3D printers capable of producing goods or materials for use in commerce or goods and materials whose production is subject to legal or regulatory oversight, making the exemption extremely limited in scope.

What does it all mean?

For the next three years, you may rely on the exemptions listed above to circumvent TPM on various forms of copyrighted works. If you would like to descramble, decrypt, remove, or deactivate an access control on a copyrighted work and you cannot rely on one of the exemptions to do so, you must seek permission from the copyright owner of the work.

These exemptions have the effect of promoting access to works, helping to facilitate the non-infringing use of these works in everyday teaching and learning activities. In three years, however, all exemptions will expire and proponents will have to petition to receive new exemptions as part of a new rulemaking process.

It is also important to remember that these exemptions only cover the circumvention of TPMs that are placed on a work to control access. Once TPMs have been circumvented, you must still ensure that your intended use of the copyrighted work is permissible under the law (e.g., meets all requirements of the TEACH Act or qualifies as a fair use).

Conclusion

Many have voiced the opinion that the DMCA exemption process, as designed, is in need of reform.[3] The process is time-consuming, involving multiple rounds of public comments, hearings, and opportunities for response. The result is a handful of exemptions that only remain valid for a relatively short amount of time. In this rulemaking round, for example, multiple exemptions were sought to simply renew already existing exemptions. To address this issue and streamline the rulemaking process, the Register of Copyright has suggested that a presumption be made in favor of the renewal of exemptions when no meaningful opposition to the renewal has been raised. Further public input on the DMCA rulemaking process is currently being sought by the U.S. Copyright Office.[4]

DMCA’s anti-circumvention rule continues to impact many different types of works and is increasingly impacting activities that don’t fall neatly into the realm of the U.S. Copyright Office’s area of expertise (e.g., the modification of software in motor vehicles or software within patient medical devices). As noted by the Copyright Office, these activities may be more properly handled by Congress or relevant regulatory agencies.

___________________________________________________________________

By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Full text of the final rules, public comments, hearing transcripts and exhibits, and the Register’s recommendations may be found at http://www.copyright.gov/1201/.

[2] While this exemption is applicable to museums, it is worth noting that museums must have permission or rely on fair use to make copies of games for purposes of preservation. Unlike libraries and archives, museums do not enjoy special protection for reproductions under Section 108.

[3] See, e.g., “Re:Create Coalition Reacts to Copyright Exemptions Released By The Library of Congress,” Press Release (October 28, 2015).

[4] Section 1201 Study: Notice and Request for Public Comment, 80 FR 81369 (Dec. 29, 2015), available at https://federalregister.gov/a/2015-32678.

Copyright Roundup, Part II

November 30, 2015 / / Comments Off on Copyright Roundup, Part II

In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.

Another fair use win for Google in most recent Google Books lawsuit.

Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project.[1]  As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.

On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.

The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.

The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.

Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.

Why does it matter?

Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.

In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.

The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.

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Copyright and Accessibility

August 28, 2015 / / Comments Off on Copyright and Accessibility

Many educational institutions, including Ohio State, share the mission of advancing and encouraging the spread of knowledge. At times, however, the exclusive rights of copyright owners can impede this mission by conflicting with the important objective of making works accessible to all, particularly to individuals with disabilities. Even with the emergence of new technologies that facilitate instantaneous copying and dissemination of materials, owner control over reproduction and distribution of works has continued to create an obstacle to the growth of works in formats accessible to individuals with print, hearing, or other disabilities. Statistics from the World Blind Union reveal, for example, that of the approximately 1 million books published per year, less than 5% are made in formats accessible to the print-disabled.[1] Given the significant societal benefit that is achieved by promoting equal access, it is important to understand the provisions of copyright law that currently support the growth of works in accessible formats and identify opportunities for further change.

Current U.S. copyright law lacks a blanket exception for accessibility, relying instead on a patchwork of statutory exceptions and the doctrine of fair use. This blog will cover some of these current key exceptions, as well as potential developments under national and international law.

The Chafee Amendment and Performance of Literary Works under §110

One important provision in copyright law that promotes accessibility to copyrighted works is the Chafee Amendment. The Chafee Amendment (17 U.S.C. § 121) permits an authorized entity to reproduce or distribute copies of previously published nondramatic literary works if the copies are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

Authorized entities include nonprofit organizations or governmental agencies “whose primary mission is to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” The vagueness surrounding the definition of “authorized entity” has contributed to confusion and reluctance to rely on the protections set forth in the Chafee Amendment. Do educational institutions like The Ohio State University, who are bound to comply with the provisions of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA),[2] qualify as authorized entities? Publishers assert that only institutions who specialize in promoting accessibility (e.g., the National Library Service for the Blind), not educational institutions in general, qualify as authorized entities. Educational institutions, on the other hand, argue that their work and legal obligations under federal law establish them as authorized entities under the Chafee Amendment.

The Copyright Act also provides narrow exceptions for the performance of literary works. Section 110(8) permits certain eligible entities to perform nondramatic literary works by or in the course of a transmission specifically for the print or hearing disabled when the transmission is noncommercial. Section 110(9) permits an authorized radio subcarrier to make a single transmission of a dramatic literary work for the print disabled if the performance is noncommercial and the work was published at least 10 years before the performance.

Current & Proposed Exemptions under the Digital Millennium Copyright Act (DMCA)

Section 1201 of the Digital Millennium Copyright Act (DMCA) prohibits any individual from circumventing technological protections measures placed on a work. For example, you cannot decrypt DVDs protected by Content Scrambling System (CSS). The law, however, provides exemptions to this anti-circumvention rule. One current exemption, in effect from 2012-2015, allows for the circumvention of electronically distributed literary works that are protected by technological measures when those technological protection measures prevent the enabling of read aloud functionality or interfere with screen readers or other assistive technologies. Literary works must be lawfully obtained by a blind or other person with a disability (for nondramatic literary works the work must be lawfully obtained and used by an authorized entity under the Chafee Amendment) and the rights owner must be appropriately remunerated for the price of the mainstream copy of the work. A renewal of this exemption has been requested in the 2015 triennial review.[3]

Another current exemption permits the circumvention of motion pictures and other audiovisual works that are on DVDs protected by the Content Scrambling System (CSS) or distributed by an online service that is protected by technological measures, in order to facilitate research and development of players that are capable of providing captioning or descriptive audio.

The Important Role of Fair Use

The statutory exceptions listed above are relatively narrow in their applications, including limitations on who may reproduce or transmit a work, the type of work that may be reproduced or transmitted, and who may benefit from such activities. One exception in copyright law that has been instrumental in filling in the gaps left by these narrow exceptions and promoting accessibility for copyrighted works has been fair use.[4] A recent decision by the Court of Appeals for the Second Circuit has reinforced the significant role of fair use in increasing the accessibility of copyrighted works.

In Authors Guild, Inc. v. HathiTrust,[5] HathiTrust created a shared digital repository of collection materials from academic and research member institutions, allowing full access to patrons with qualifying disabilities. The district court held this activity was permissible under the Chafee Amendment, stating that educational institutions “have a primary mission to reproduce and distribute their collections to print‐disabled individuals…[making] each library a potential ‘authorized entity’ under the Chafee Amendment.” The court held, however, that HathiTrust was not precluded from relying on the defense of fair use in the event that they were not authorized entities or did not otherwise fall within the permissible categories of the Chafee Amendment. On appeal, the Second Circuit held that providing full digital access to print-disabled patrons was protected under fair use. [6]

International Considerations: Adoption of the Marrakesh VIP Treaty

U.S. copyright law may also be influenced by international agreements. One international treaty directed to making works more accessible is the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities (“Marrakesh VIP Treaty”). The Marrakesh VIP is an international treaty administered by the World Intellectual Property Organization (WIPO) which would obligate signatory countries to create mandatory limitations and exception to their copyright laws pertaining to “the right of reproduction, the right of distribution, and the right of making available to the public…to facilitate the availability of works in accessible format copies” for the benefit of people with print disabilities.[7] The treaty would also permit exchange of accessible works across borders by authorized entities serving the blind, visually impaired and otherwise print disabled. Finally, the Treaty provides that contracting parties take appropriate measures to ensure that any anti-circumvention restrictions do not prevent the blind, visually impaired, or print disabled from enjoying any of the exceptions provided for in the Treaty.

The Treaty, adopted on June 27, 2013, will go into force three months after 20 eligible entities have acceded to or ratified the Treaty. There is currently accession or ratification from ten nations. The United States signed the Treaty on October 2, 2013 but has not yet ratified the Treaty.

In Conclusion

Making copyrighted works available in accessible formats can present a challenge to the exclusive rights of copyright owners. Absent a blanket exception that would allow for the creation of accessible formats for all persons with disabilities, individuals and educational institutions must navigate the existing narrow statutory exceptions or rely on a fair use defense in order to make works accessible. While society recognizes the importance of incentivizing creators to create new works, we must also recognize the importance of establishing equal access to those works in order to advance public knowledge and encourage further creation of works.

Accessibility Resources

_____________________________________________________________________________________

By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Limitations and Exceptions: Access to Books for the Visually Impaired – Background Brief, World Intellectual Property Organization, http://www.wipo.int/pressroom/en/briefs/limitations.html (last updated January 2014).

[2] Section 504 of the Rehabilitation Act of 1973 provides that no qualified individual with a disability, solely by reason of his or her disability, be excluded from participating in, or be subjected to discrimination under any program or activity receiving federal funding. 29 U.S.C. § 794(a). The Americans with Disabilities Act of 1990 requires public entities to make reasonable modifications when necessary to avoid discrimination on the basis of disability. 28 C.F.R. Sec. 35.130(b)(7).

[3] 79 FR 73863 (December 12, 2014).

[4] The House Report on the Copyright Act of 1976 also identifies making accessible copies of works for the blind as an illustrative application of the fair use doctrine (“…the making of a single copy or phonorecord by an individual as a free service for a blind persons would properly be considered a fair use under section 107.” H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976).

[5] 902 F. 22 Supp. 2d 445, 460‐64 (S.D.N.Y. 2012).

[6] 755 F.3d 87 (2d Cir. 2014).

[7] Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled art. 4, June 27, 2013, TRT/MARRAKESH/001.

Copyright online: What you need to know about protecting your works and using the works of others

April 2, 2014 / / Comments Off on Copyright online: What you need to know about protecting your works and using the works of others

Every day content creators invest their time, energy, and creativity into generating and publishing millions of original works online. In the time it takes for a person to copy and paste, those works can be taken out of the creator’s control and passed off as the creative labors of another. Understanding the scope of rights granted to copyright owners is the first step in protecting your works online, and can also help you avoid infringing on other creators’ rights.

Protecting Your Works:

Copyright protection is as equally broad for online content as it is for non-digital content; to qualify for copyright protection, the law requires an original work of authorship fixed in a tangible medium of expression. Blogs, website designs, e-books, videos, and graphics are just a few examples of protectable digital works. Copyright is automatic; the moment you create a work, you own the copyright.[1] You do not need to register your work or include a copyright notice to have copyright protection.

As a copyright owner, you have a number of exclusive rights to your works. These include the right to:

  1. Reproduce your work;
  2. Prepare derivative works;
  3. Distribute your work;
  4. Publicly display your work;
  5. Publicly perform your work; and
  6. In the case of sound recordings, publicly perform the work by means of digital audio transmission.

This means that before anybody uses your work in any of the above ways, they must first get your permission to do so.[2] This prohibition on copying is not just limited to exact copies of your whole works—a third party does not have to copy every single word or pixel of your work to be infringing—it also extends to works that are substantially similar to your own.

Tip #1: Make it clear that you are the copyright owner.

An important step in protecting your online content is letting others know that the particular work you have placed online is your own. Works no longer need to have a copyright notice to qualify for copyright protection, but by affixing a notice to a work, a copyright owner lets others know that the work is protected by copyright and the content creator is the owner of that copyrighted work. Subsequently, third parties can clearly see whom they must seek permission from if they wish to use the work.

Notice may be designated by the use of the “©” symbol, the word “Copyright”, or the abbreviation “Copr.”, followed by the copyright owner’s name and the year of the publication of the work. In addition to this information, it may be beneficial to provide an easy way for third parties to contact you for the purposes of asking permission to use your works.

Tip #2: Let others know what they can or can’t do with the work.

As we mentioned before,  copyright owners have exclusive rights in their works. Under the traditional copyright framework, a copyright owner reserves all rights in his or her work, allowing third party use only through individual permission or statutory exceptions, such as fair use. One easy way to communicate this information is through the use of a disclaimer. A disclaimer can be placed on the website where the content appears, and will notify others that your work is protected and should not be used without the creator’s permission.

Beyond the traditional copyright framework, however, content creators can also control how their works are used through the use of a Creative Commons license. You can choose from several different Creative Commons licenses that allow others to use your work under certain conditions —commercial, noncommercial, derivative works allowed, etc. — without additional permission, and let others know of the conditions through the use of an online-generated badge. See our page about Creative Commons for more information, including the licensing options available for content creators.

Tip #3: Monitor your work.

Notices, disclaimers, or easy licensing avenues will not be enough to deter all potential infringers. This is why it is important to monitor your work. In addition to the routine manual checking you may be doing on your own, such as through Google or Twitter, there are a number of online tools that can help in this process. For suggestions on monitoring tools available to content creators, and a comprehensive discussion on protecting your blog content, check out Awesomely Luvvie’s blog post, “How to Protect Your Blog Content: Know Your Rights”.

Tip #4: Enforce the rights you have.

So what do you do when you discover that another person has copied your content? You have a number of options, the first of which involves directly approaching the alleged infringer to ask them to remove the content and/or providing information on how they may use your content (you may ask for appropriate citation of your material or a fee for the use). Contact information may be found on the infringing website, or in some cases may be found by searching WHOIS and reviewing the registrant information. If you are unable to determine the author of the infringing work, you may contact the website service provider or webhosting company. Once again, you may search WHOIS to find contact information on the service provider or web hosting company.

Under the DMCA safe harbor provisions, the webhosting company or service provider may have a defense against your claim of infringement, so long as it expeditiously removes the infringing material upon receiving a proper takedown notice from you. To be effective, a takedown notice must be sent to the registered agent of the service provider or webhosting company you wish to contact. This information may be found through the U.S. Copyright Office’s directory of service provider agents.

Many website service providers (such as YouTube) have explicit copyright removal procedures in place, making it easy for you to file a proper DMCA takedown notice. If notice forms are not provided, you may file a notice on your own, so long the notice includes the following elements:

  • Your physical or electronic signature;
  • Identification of the copyrighted work;
  • Identification of the allegedly infringing material (with enough information that the service provider can find the material);
  • Your contact information;
  • A “good faith” statement that you believe use of the material is not authorized by law; and
  • A statement that the information you have included is accurate, to the best of your knowledge.

Finally, if you are unable to get infringing content removed or satisfactorily attributed, you may seek legal action. One important thing to keep in mind, however, is that civil actions for copyright infringement require that the work be registered with the Copyright Office.

Using the Works of Others:

When using the work of another in the creation of your own online content, you must first determine if the work itself is protected by copyright. Remember that copyright extends to original works of expression fixed in tangible mediums of expression. Copyright does not extend to ideas, facts, slogans or short phrases, or works that fall within the public domain.

If a work has copyright protection, and you are unable to rely on a statutory exception, you must seek permission from third parties to use their works. Similarly, any third party wishing to use your works must first seek your permission to use the works.

One option to avoid seeking direct permission is to utilize the work by linking to the material. If, however, linking to the source is insufficient, you must consider whether you can rely on an exception like fair use or seek permission from the copyright owner to use the work. If fair use is appropriate be sure to document your analyses of each instance where you rely on it. Permission can come from contacting the copyright owner directly, or adhering to the conditions of use they have set forth through any open licensing option such as Creative Commons. Finally, when using a work, limit your use of the work to only the amount needed to achieve your intended purpose, and attribute your sources.

[1] An exception to this would be a work that was created as a “work for hire.”

[2] A note on fair use: Under some circumstances, a third party may be able to use your work without receiving your permission. This can occur if the third party’s use of your work is determined to be a fair use. Visit our page on fair use to find more information about fair use, including tools to help determine if a use may qualify as fair.

 

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Maria Scheid is a graduate of The Ohio State University Moritz College of Law and former legal intern at the Copyright Resources Center at OSU Libraries

DMCA Rulemaking–Submit Examples by October 31

October 24, 2011 / / Comments Off on DMCA Rulemaking–Submit Examples by October 31

Recently the U.S. Copyright Office issued  a “Notice of inquiry and request for comments” with regard to anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).  See the Federal Register for the full text of the notice.

Sections of the DMCA forbid breaking copy-protection mechanisms on digital media, even for non-infringing uses, such as those allowed under fair use.  However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years.  Exemptions that are in place from previous rule-making must be renewed every three years as well.  In the summer of 2010, the Librarian issued a number of exemptions, including one to allow de-encryption of educational video under certain circumstances.

Here is an example of the situation the exemption is intended to address:  A faculty member wants to show some short video clips in class to make an educational point or perhaps comment on a social situation.  He or she would like to copy clips from a legally-obtained commercial DVD so that they could easily be taken into the classroom and shown as a compilation.  Without the exemption, if the DVD was encrypted with  the commonly-used Content Scrambling System (CSS), it would be illegal to break that system and copy parts of the video, even if everything else about the copying would fall under fair use.  Before the summer of 2010, an exemption that would allow copying high-quality video was available only if the faculty member was teaching in the area of film or media studies and the DVD was part of a collection in that subject area.

Under the rules announced in the summer of 2010, the exemption was extended to all university and college professors and to college and university film and media studies students.  The same exemption is available for documentary film-making and noncommercial videos.  The copier must reasonably believe that the circumvention is necessary in order to fulfill one of the above purposes. (In other words, a lower-level resolution screen capture video that did not circumvent would not fulfill the intended purpose.)  In all cases, the DVD from which the copy is made must be legally-acquired and the copier must still perform a fair use analysis.  This exemption states that it is for “short portions” only; it does not allow copying of entire works.  The exemption only covers DVD and CSS technology, not systems such as Blu-Ray, video streaming, or others.

The Library Copyright Alliance is an organization made up of three library associations that deal with intellectual property matters and “communicate with lawmakers…to express [the need for] changes that enhance, rather than harm, the ability of libraries and information professionals to serve the needs of the general public.”  They are preparing comments showing why it is important to extend this exemption for another three years.  The Library Copyright Alliance is asking those of us involved with university teaching to send them as many examples as possible of how this exemption is helpful in teaching.  From one staff member:  “We need LOTS of examples of faculty in all disciplines using clips and examples of film students using clips.”  Examples cannot be speculative; they must be real-life situations.

Ohio State folks, please send me examples by October 31.  I will compile them for the Library Copyright Alliance.  The final date to submit comments is December 1, but the Library Copyright Alliance will need some time to compile all the examples they receive.

Contracts and Internet Comments

March 4, 2011 / / Comments Off on Contracts and Internet Comments

Recently, I emailed members of my work group a blog post by Eric Goldman on the services of Medical Justice, a company that physicians join to fight Internet defamation, including criticisms from patients that are posted on public and social media websites.  I got several questions from colleagues about how this worked, so I learned more about this phenomenon, about the the laws behind it, and how it fits in with other strategies that companies have for dealing with what they consider unfair comments on the Internet.

How is that social media sites don’t incur legal liability when people can say so many mean things to each other and about each other on their sites?  If your students say untrue things about you on ratemyprofessors.com, can you sue the site for defamation?  The answer is probably not, and one of the reasons is 47 U.S.C. § 230, which states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. “  At the same time there are limits to this immunity; there can still be criminal liability and intellectual property laws are exempted.

In addition, individuals can still be liable for defamation under these circumstances.  Companies are suing them for criticisms online in suits that are often called Slapps, Strategic Lawsuit Against Public Participation, a concept that predates the Internet.  In other cases, online retailers require that sellers agree to terms and conditions that preclude posting negative reviews.   Medical Justice uses a different tactic by making use of the limit in 47 U.S.C. § 230 for intellectual property infringement and of 17 USC §512, the Digital Millennium Copyright Act’s, take down provision in order to provide what it calls a “vaccine against libel.”  Part of §512 limits an internet service provider’s liability if it responds to copyright take down notices by removing the infringing content.    Doctors participating in the Medical Justice program require patients to sign a contract agreeing that they will not publish comments about their treatment except in approved fora.  If they do publish comments, copyright is preemptively assigned to the doctor.  This means that if the patients participate on physician rating sites, the physician can contact the Internet service provider and demand a take down as the copyright holder.

Medical Justice notes that the contract does not mean that a doctor will demand a take down of any comment, only of ones that are “fictional or slanderous.”  It does not prevent patients from complaining to consumer agencies, licensing boards, or others.  But how many patients understand what they are signing at the time of treatment? As Goldman points out, the inequality of bargaining position may make these contracts unconscionable.

What is a DMCA Exemption? Can It Be Appealed?

August 23, 2010 / / Comments Off on What is a DMCA Exemption? Can It Be Appealed?

The exemptions to the Digital Millennium Copyright Act (DMCA) that the Register of Copyrights announced last month have garnered much publicity, especially the one that dealt with jailbreaking iPhones.  In the university community, the exemption that deals with educational video has also gotten some press.  But what is a DMCA exemption anyway?  And, as one of my first correspondents on this subject asked, is there an appeals process once an exemption is issued.

The DMCA, which was passed in 1998 and became part of various sections of the federal copyright law, contains provisions that address issues of copyright in the digital age, and, in some instances, brought us into line with international intellectual property treaties.  Some of its most notable sections are the anti-circumvention provisions, which forbid breaking copy-protection mechanisms on digital media.  These provisions are in force non-infringing uses, such as those allowed under fair use.  However, the law also allows the Register of Copyrights to recommend that the Librarian of Congress issue exemptions to the anti-circumvention statutes every three years.  Exemptions stay in force for the next three years and must be renewed in order to continue beyond that period.

Can an exemption be appealed?  There is no precedent one way or another.   Some observers believe that, rather than litigate, Apple’s way of dealing with the jailbreaking exemption will be a patent application for systems and methods that will allow the company to detect whether an unknown third party has tampered with a device and take corrective action in response.

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