January 20th

January 20th

January 20th

 

Readings & Links

January 20th

 

http:/www.barachobama.com

    IO is a company that holds and owns a number of registered copyrighted for a variety of adult entertainment products.  IO alleged that it found its own copyrighted clips from IO films on the Veoh website.  None of the alleged clips contained copyright notices except one.  Veoh is a site that relies on content contributed by users. Veoh is similar to a site like YouTube.  IO made the case that Veoh had to break protection codes to upload videos into the Flash format that the site uses.  By doing this, IO argued that Veoh became a direct infringer. 

The judge determined that Veoh was still protected by the safe harbor provisions.  Veoh does not actively oversee the uploading of content.  Veoh has an established system where the software reformats user content automatically once uploaded.  The system makes the content accessible immediately to other users.  Veoh has default parameters for the submission of content by a third party.  The automated system is started with the Veoh user.  Everything is put into motion with the user.  Veoh does not preview videos before they are uploaded.  The uploading is due completely to the users.  The court gave a summary judgment for Veoh.  Based on the DMCA, the judge said that Veoh was in fact protected by the Safe Harbor Provision, and the site complied with the statutes.   

The key detail about this case is that IO did not send any takedown notices.  This is critical to my thesis that there is a severe violation and abuse of power.  IO did not even follow proper procedures.  There was no take down notice sent.  Instead, IO went straight to court.  The notice and take down course of action was completely skipped.  Instead of stopping piracy, the DMCA in this case ended up limited consumer choices for a period of time.  The videos were taken down and  content made unavailable.

Rashmi Rangnath serves as a Staff Attorney at Public Knowledge.  Her topics of interest and expertise are in patent law and copyright.  She discusses where we are now after 10 years of the DMCA.  The two main provisions of the DMCA are the anti-circumvention measures and ISP (Internet Service Provider) liability provisions.

The anti-circumvention provisions ban circumventing locks on digital material.  It also makes it illegal to market and/or sell technology that would help people get around the locks on digital content.    The ISP liability provisions give a “safe harbor” to ISPs as long as they fulfill certain requirements.  They must “maintain a policy of terminating the internet access of repeat infringers.”

Rangnath points out that although the aim of the DMCA was make content available digitally while protecting the owners of this digital content.  It has actually had the opposite effect.  The effectiveness of preventing “piracy” is not questionable after 10 years of the DMCA.  Many of the fears that were being voiced by opponents to the DMCA, like museums and libraries, are now actualized.  Take down notices are being sent without just cause.  Fair use content is being removed unjustly.  With a lack of education about the DMCA, fair use is being violated.  
 
The design of anti-circumvention has created more problems then it has solved.  Anti-circumvention provisions are applied blindly most of the time.  Take down notices are sent regardless of it something is fair use or not.  Rangnath cites RealNetworks vs. Streambox.  Basically the Streambox technology permitted people to record music and movies that were being streamed over the Internet.

Rangath brings up a key point that I will discuss in my paper.  She says that “The provisions vest too much control in copyright owners over the design of devices.” After 10 years of the DMCA, it is apparent that there are certain abuses going on.  There is no system of checks and balances.  As a result, the rights of fair use are being violated.

When Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law, the president and Congress were both trying to usher in a digital revolution. The goal of the DMCA was to protect copyrighted information and owners from copyright infringement. The DMCA made it illegal to circumvent digital rights measures (DRM) on copyrighted material. When the DMCA was enacted, copyright owners no longer had to worry about risking their work. It has been ten years and the digital revolution has taken place. The DMCA played a crucial part in this. However, it has also created a set of problems that need to be resolved. The original purpose of the DMCA is not being served. The act does little to stop piracy with ineffective DRMs. The take down notice system is being abused by big copyright owning companies. People are losing their right to free speech and fair use. The DMCA is no longer in line with the goals of copyright. Instead of encouraging creativity, the DMCA stifles progress and innovation. Creators today need to worry about having a lawyer with the advent of their creations. Reform or repeal of the DMCA is critical or we will see the end of fair use with digital content.

dave chappelle on happiness and laughter

study with senior citizens

freedom linked with depression

happiness and television

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happiness training programs

Fair use is a term that originated in the United States.  It allows limited use of material that is copyrighted.  With fair use, permission is not required depending with appropriate circumstances. Fair use is defined and regulated with a four-factor test.  Using this test, one can tell if it violates copyright. A work must satisfy all four factors to pass the test.  Fair use is a tricky subject because it really does vary in every case.

The first factor says that a work is fair use depending on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

The second factor concerns, “ The nature of the copyrighted work.”

“The amount and substantiality of the potion used in relation,” is the third critical factor

The final factor says that a work is fair use depending on “ The effect of the use upon the potential market for or value of the copyrighted work.” 

IT would be ridiculous if you had to ask for permission everytime you were going to use a copyrighted work.  This is the purpose of fair use.  Fair use was created in tune with the goal of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This information lays the foundation for my paper.  It provides the background information for me.  My claim is that the DMCA violates fair use and copyright.  By outlining the purpose of copyright and the factors of fair use, I can then tell how DMCA violates.

This paper discusses different perverse consequences of the DMCA.  Lee says that when Congress was trying to prepare for new digital technology, it made a mistake.  When the DMCA was passed, the courts were cut out of its role.  The universal band on technology and devices that “circumvent” digital rights management technologies (DRM) leave no role for the courts.  This lack of balance has created a system for consumers with limited options. The copyright owners now completely control things like Internet streaming and playback devices.  There is even evidence of certain firms utilizing the DMCA as a means of stopping research and reverse engineering.  

The DMCA also eliminates competition.  The copyright owners and companies that issue their content have the power the lock out competitors.  Also, digital rights management technologies tend to be ineffective and do little to stop pirates.  Instead DRM technologies make it harder for people making fair use out of the copyrighted work.

The paper says that there were in fact legal happenings in play before the DMCA enactment.  These legal processes were leading to a balanced body of law that would involve the courts.  Consumer choice, fair use, and competition would not be decreased as they are with the DMCA.  The budding body of law would give rights back to the people instead of depending on the technology design.  Really, without the DMCA we would be okay.  

Lee says that people should not have to worry about coming out with a new technology and getting sued because it is illegal according to the DMCA.  That undermines the goals of copyright.  This is a key point of my paper.  This article is extremely helpful in arguing my case.  The effects of the DMCA decrease consumer rights and options.  It also stifles creativity.  No one wants to come up with new technology wondering if they’re going to get sued for it.

The DMCA is an amendment to title 17 (Copyright Act).  Bill Clinton signed it into law on October 28th, 1998.  The DMCA actually implemented treatises from the World Intellectual Property Treaty (WIPO).  The goal of the act was to give copyright owners protection with the oncoming digital advances.  It enforced the treatises in the international treaty.

The DMCA is split up into five different titles.  They are

Title Io WIPO Copyright and Performances and Phonograms Treatises Implementation Act of 1998
This put the treaties from WIPO into action.
Title IIo Online Copyright Infringement Liability Limitation Act
Gives Internet Service Providers protection from copyright infringement under certain circumstances.
Title IIIo Computer Maintenance Competition Assurance Act
Outlines Exemptions:  In the case then you need to copy a computer program by activating a computer because of a repair.
Title IVo Miscellaneous Provisions
Title Vo Vessel Hull Design Protection Act
Created a new form of protection for the design of vessel hulls

This summary of the DMCA is critical to my paper.  My paper is reallly centered on the DMCA and its affects on fair use and free speech.  In order to discuss the problems with the DMCA I must discuss its provisions and how it is supposed to work.  Then I will outsline what should be changed.

 

This article by Glickman and Holleyman provide a different opinion on the affects of the DMCA.  Holleyman serves as the CEO and president of the Business Software Alliance.  Glickman serves as the chairman and CEO of the Motion Picture Associate of America.

In 1998, Congress signed the DMCA in preparation for the digital revolution that was taking place.  The goal was to provide access to information and material digitally.  The DMCA allowed and supported the digital revolution.  Copyright owners would never have put their works into digital form had it not been for the protection that the DMCA afforded them.  By passing the DMCA, Congress encouraged the owners of copyrighted material to take that risk.  Without an actual written law, hesitancy would have replaced the risk that the owners were willing to take.  Within the last ten years, since the DMCA, new technology has been consistently bursting onto the scene.  PlayStation, iPods, smartphones, YouTube, and Facebook are only a few examples.  Tons of sites have emerged which encourage interaction of users and their creativity.  The DMCA ushered in this technological progress.       

The success of the DMCA has been amazing.  It has afforded consumers of digital content a multitude of choices about how, where, and when they access this content.  The balanced nature of the DMCA encourages innovation and propagation.  The benefits that consumers have gained from the work made available by the DMCA are massive. 

I will be using this article as a contrasting view to my own.  I think this gives a really interesting spin on the DMCA.  I agree that it has had a positive effect.  It did in fact usher in a digital revolution.  However, this article really ignores problems that the DMCA has created.  It praises the DMCA as the savior to all that is digital.  What is so interesting to me is to keep in mind the authors.  The authors are those people that issue the take down notices.  This point of view will give a contrasting perspective.

This post is from 2004 and discusses the proposed amendment to the DMCA at the time.  The proposed bill, H.R. 107, would make it a requirement for a clear label on copy-protected discs.  It would also become illegal to circumvent the copy-protected disc unless outlined as an exemption.

The article brings a very interesting aspect to my paper.  It looks at the opinions of the actual musicians and songwriters.  Instead of looking at the people who would be infringing on copyright, the article looks at people who own the copyrighted works.  In 2004, the Pew Internet Project conducted an online survey.  The survey asked about 2,755 songwriters and musicians questions such as,

How do you feel about the use of copy-protection technology on CDs?
Answers were split almost evenly.  About 44% answered that if they had the option, they would like their CDs to have this technology.  44% answered the opposite.  The remaining 12% answered, “I do not know.”

How do you feel about intentionally breaking or circumventing copy protection technology on purchased discs?
46% of musicians and songwriters answered that there should be no type of prosecution for infringement in this situation
35% answered that yes prosecution is appropriate
19% answered, “I do not know.”

This research survey will be used in my paper as support for my claim that infringement penalties are too harsh.  Also, the other perspective from musicians and songwriters add a different spin.  If the majority of those who own the copyright work are against prosecution then why are penalties so severe?

In his blog, Michal Geist discusses the adverse effects of the Canadian DMCA.  The Candadian DMCA is closely modeled on the U.S. DMCA.  Geist, after only perusing the Canadian DMCA made five main points during this blog entry, three of which I will be using

Although there are seemingly positive provisions in the Canadian DMCA, there are undermined by fine print, digital lock provisions.  Provisions such as the private copying of music now become illegal with these digital lock provisions.  One everyday situation is putting your favorite DVD onto your new iPod touch, now becomes copyright infringement.

The digital lock provisions are one addition to the Canadian DMCA that is not in the U.S. DMCA.  There is a ban on giving out technology that can be used for circumvention.  Even buying an unlocked cell phone would be considered infringement.

$500 fine per infringement; $5,000 after one notice; 10,000 after
If you can’t afford this, then it’s jail time.                                                                

This blog offers a different perspective.  Geist offers a contrasting DMCA that is even worse than the U.S. DMCA.  I will be using this perspective as a reference point.  Measuring the effectiveness of the Canadian DMCA to the U.S. DMCA.  Would a stricter DMCA, similar to Canada’s, be more affective at preventing copyright infringement?  Or Would the New Zealand, more balanced approach be more affective?  What changes could be more affective for the U.S. DMCA?  I will use this Canadian perspective as a means of helping to answer these questions.  I will be looking at the effectiveness of a stricter DMCA in this digital age.

This is a public policy report that offers important research for my paper.  It discusses how “free” expression really is in this new age with strict copyright control like the DMCA.  The Brennan Center for Justice conducted a research project in 2004.  The objective of the project was to see how the people, artists and scholars, directly affected by fair use were dealing with it.  These are the people who make significant contributions to culture and will definitely be affected by an amendment like the DMCA.  The Brennan Center used interviews, online surveys, focus group discourse, and most importantly, an analysis of about 153 of 300 take down letters.  The most interesting to me and the method that I plan to discuss in my paper is the analysis of the take down notices.  The 153 notices were aimed at materials that were actually fair use or had a weak IP claims.  

 

The research showed a strong positive correlation between the strength of fair use claim and the likelihood that the material would be removed.  There was also a troubling finding that even when there were weak IP claims, more than half of trademarked words or phrases were removed.  Even though it was fair use, the weak IP claims won.  Overall, the take down notices really are distinctly violating the first amendment. 

 

The other methods, interviews, online surveys, and focus group discussion found two common, major themes.  The research project found that there is a great deal of confusion about fair use and the DMCA.  Also, there is an enormous need for a legal support base to deal with gatekeepers.  The paper suggests possible improvements: a clearinghouse for information like how to reply to take down notices, legal support base, and decreases to the penalties.

 

I plan to use this paper’s research to support my claims 

1. People have inadequate knowledge about DMCA, fair use, and their first amendment rights

2. Gatekeepers are abusing take down notice rights

3. How effective are the take down notices at eliminating copyright infringement? 

4. Who are the innocent bystanders being caught up by the take down notices?

This is a summary of frequently asked questions about the DMCA.  It defines the DMCA, and explains how it affects things like security testing, encryption researchers, and the first sale doctrine among other things.  There are a few questions answered that are important for my paper. 

What is the controversy surrounding the DMCA? With the transition to the digital age, there must also be a shift with the protection for artists and creators of copyrighted works.  Now with the creation of “digital locks” to protect copyrighted materials online, fair use is in danger.  The DMCA makes it illegal to break the “digital locks.”  This undermines the right to fair use of the copyrighted works on the worldwide net.  Exceptions to the DMCA law are very specific and so the activities for most of us are quite limited.  There are various technological protection methods that are already being used on things like DVDs, websites with password protection, etc.  Technology that restricts interaction with a copyrighted material is an access control.  An encryption on a DVD is a perfect example.  The DMCA makes it illegal to circumvent an access control.  A copy control is technology that controls copying of a copyrighted material.  The DMCA says that providing means for others to circumvent copy controls is illegal.  But actually circumventing copy controls is not illegal under the DMCA.  This information about the specifics of the DMCA are important for my paper.  I will need to thoroughly explain all the provisions of the DMCA to discuss specifically why it stifles progress and creativity.

What are the affects the DMCA will have on the general public?  What does the DMCA mean for people like you and me?
The average public is one group missing from the exemptions of the DMCA.  The only exemptions that affect people like me are
a)    Privacy exemption→ technology that is used for collecting personal information
b)    Technology used to block minors from inappropriate websites
The other exemptions include that do not directly affect the general public are for libraries, encryption research, reverse engineering for development of programs, law enforcement, intelligence purposes, education institutions, and security testing.

I plan to discuss the serious implications that this will have on the goals of copyright, to foster creativity and progress. Specifically, how the DMCA goes against the goals of copyright and violate the right to fair use. 

This memorandum summarizes briefly each title of the DMCA; it provides an overview of the law’s provisions although for purposes of length and readability a significant amount of detail has been omitted.  Overall, it renders the more technical language and organization of the law itself into a much more straightforward form.  The Digital Millennium Copyright Act (DMCA) is a United States copyright law, created by the Copyright Office,  which implements two 1996 treaties of the World Intellectual Property Organization.  The DMCA was created as a way for copyright law to be adapted to the questions raised by digital technologies.  The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the infamous "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.).   Another section of the law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses, which require circumvention of encryption.

Under the Clinton administration, the DMCA was passed in an attempt by congress to address emerging digital technological advances that threatened copyrighted material.  American copyright laws were quickly becoming outdated and often useless.  Thus, Congress decided to move these areas of legislation into the digital age. The DMCA put a ban on any implement (both physical instrument and software) whose intended function was the circumvention of copyright safeguards. This legislation targeted devices such as VCRs, but focused mainly upon burgeoning internet technology such as peer-to-peer clients. DMCA Title II, for example, provides safe harbor to Internet Service Providers that comply and adhere to copyright guidelines, and agree to block the access of users who are shown to be committing copyright infringement.

This memorandum is extremely valuable to my overall project because the DMCA is an essential element in the MPAA’s campaigns against cinematic piracy and copyright infringement.  The DMCA provides the guidelines for piracy and digital technologies and therefore this memorandum will be a crucial asset to the basis of my final paper.

 

 

United States Copyright Office.  The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary.  United States Copyright Office.  28 November 2006. .

This is a summary of the Digital Millenium Copyright Act, created by the Copyright Office. It renders the more technical language and organization of the law itself into a much more straightforward form. It definitely says something about the polarizing nature of the DMCA that the only article which I have come across without a very strong, clear viewpoint of the subject is a pure summary; as could be expected, the Copyright Office is attempting to maintain an objective viewpoint, to whatever degree possible.

The DMCA was created as a way in which copyright law could be adapted to the questions raised by digital technologies. The most controversial section of the DMCA added a Chapter 12 to Title 17 of the United States Code; this section contains the much-talked-about "anticircumvention provisions", criminalizing any attempt to break through digital copy protection (CSS encryption on DVDs, etc.). Another section of law removes any liability for online copyright violations from online service providers as long as they adhere to certain broad guidelines. There is also the possibility of application for exemptions from the DMCA for non-infringing uses which require circumvention of encryption.

My project requires a detailed knowledge of the provisions of the DMCA itself; I not only plan to quote directly from the DMCA in my project, but also to use clips appropriated from DVDs to create the project. This summary of the law is one of the most simple and concise descriptions of its provisions, without much color in the form of personal opinions.

 

Decherney, Peter. "From Fair Use to Exemption." Cinema Journal 46.2 (Winter 2007), forthcoming.

This article makes an interesting argument on whether exemptions from the DMCA can be made when fair use is harmed, particularly making a plea to the US Copyright Office to exempt media professors to make clips from DVDs for class use without the action (at the time of petition) considered illegal. Exemption always exists alongside fair use, and while the DMCA allows for exemptions to certain provisions, it does not exempt fair use. The DMCA’s anti-circumvention provision prohibits bypassing of the digital encrypted media, or DRM, needed to make clips from DVDs—thus, making copies is illegal even if use of the copy is considered fair use. DRM restriction interferes with scholarship and teaching, and media educators should have the right to teach university students with clips from DVDs without limiting education. The four other DMCA exemptions similarly are constructed as being a category of work limited by technology; thus, this appeal should not be any different as it is likewise a class of work defined by its interaction with an institution, a library. Naturally, the advancement of technology constantly transforms copyright policy, and the crucial step indicated is that copyright norms existing now will determine the future of fair use, and currently we are in a state of fluid academic use appealing for a culture of permission without breaking DMCA regulations. "Exemptions are not a substitute for fair use."

Summary of DMCA

Link to the entire Act

Testing

Practice