Legal Liability under the Digital Millennium Copyright Act and the Communications Decency Act Presented by Daliah Saper Saper Law Offices, LLC

Overview  Copyright Law  Defamation Law  Digital Millennium Copyright Act  Communications Decency Act  Applications of DMCA and CDA

Copyright  What is a copyright?  A copyright is a set of exclusive rights given to an original author to regulate the use of a particular expression of ideas. These rights gives the owner of the copyright the exclusive right to make copies of the work, distribute copies of the work to the public, prepare derivative works, perform the work publicly, and display the work publicly.  Basically, the copyright owner has the right to exploit his/her own work, but those rights are unavailable to any others.

Copyright  What are the requirements for obtaining copyright?  Copyright protection applies to any work that is: 1) original, 2) a work of authorship, and 3) fixed in a tangible medium of expression.  What works can be copyrighted?  Literary, musical, dramatic, graphic, motion pictures and other audiovisual works, sound recordings, and others.  A copyright does not protect ideas or other non- expressive elements of a work.

Copyright  What constitutes a copyright infringement?  A copyright infringement is the unauthorized use of copyrighted material in a way that violates any of the owner’s exclusive rights, unless the alleged activity falls within one of the statutory exceptions.  To prove infringement, the copyright owner must show ownership of the allegedly infringed work and that the alleged infringer violated one of the owner’s exclusive rights.

Defamation  What is defamation?  Defamation is the communication of a false claim or statement of fact about another person to a third party that harms his or her reputation.  Two types of defamation Libel, or written defamation, including things written on websites, blogs, and message boards Slander, or spoken defamation

How to Protect Yourself from Lawsuits  Things you can control  Don’t use other peoples’ content without permission  Be careful what you say online about others  Things that are more difficult to control  Postings by users on your: web site Wiki social network blog

EEK!!  How do I protect myself from rogue service users? … the government’s got your back …kind of

Digital Millennium Copyright Act  What is the Digital Millennium Copyright Act?  The DMCA has a number of parts, the most important of which is Title II, the Online Copyright Infringement Liability Limitation Act (“OCILLA”).  OCILLA creates a safe harbor for online service providers against liability for acts of infringement by users of the service.  Service providers must meet various criteria in order to qualify for protection under the DMCA.

Digital Millennium Copyright Act  What defines a service provider under the DMCA?  "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" OR  "a provider of online services or network access, or the operator of facilities thereof.“  Includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites

Digital Millennium Copyright Act  How does a service provider qualify for protection?  In addition to informing its customers of its policies, a service provider must follow the proper notice and takedown procedures and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

Digital Millennium Copyright Act  Example of takedown and put back procedures :  Jane puts Artists's song on her Myspace page.  Artist, searching the Internet, finds his song on Jane’s page.  Artist’s Lawyer, sends a letter to Myspace’s designated agent including: Jane’s contact information the name of the song that was copied the address of the copied song a statement that he has a good faith belief that the material is not legal a statement that, under penalty of perjury, Lawyer is authorized to act for the copyright holder Lawyer’s signature  Myspace removes song.  Myspace tells User that they have removed the song.

Digital Millennium Copyright Act  Example continued  User can now send a counter-notice to Myspace, if she feels the song was removed unfairly. The notice includes contact information identification of the removed song a statement under penalty of perjury that User has a good faith belief the material was mistakenly taken down a statement consenting to the jurisdiction of User’s local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which Myspace is found. User’s signature  Myspace then waits business days for Artist to file a lawsuit.  If Artist does not file a lawsuit, then Myspace may put the song back up.

Google’s has a great DMCA notice   “It is our policy to respond to clear notices of alleged copyright infringement. This page describes the information that should be present in these notices. It is designed to make submitting notices of alleged infringement to Google as straightforward as possible while reducing the number of notices that we receive that are fraudulent or difficult to understand or verify. The form of notice specified below is consistent with the form suggested by the United States Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, but we will respond to notices of this form from other jurisdictions as well.”

Second Life has a funny one   They have to emphasize that the DMCA notice takes place in “real life”

Chilling Effects Site  NoticeID=861 NoticeID=861  Great Explanation of the DMCA

DMCA in the Real World A Case to watch: Viacom International, Inc. et al v. Youtube, Inc. et al  Viacom sues Youtube (owned by Google) over copyright infringement for $1 billion  YouTube, due to the DMCA safe harbor provisions, argues it should not be liable for the infringing videos shared by its users.  Case is still pending

Defamation and other Claims  The DMCA only applies to Copyrighted works.  A different law: the Communications Decency Act, applies to statements and actions by third party users of your site, blog, wiki, etc.

Communications Decency Act  Provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others  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.  Protection for service providers against liability for users’ defamatory statements  Enhances free speech by making it unnecessary for ISPs and other service providers to unduly restrict customers' actions for fear of being found legally liable for customers' conduct.

Communications Decency Act  In analyzing the availability of the immunity offered by this provision, courts generally apply a three-prong test. A defendant must satisfy each of the three prongs to gain the benefit of the immunity: 1. The defendant must be a "provider or user" of an "interactive computer service.“ 2. The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue. 3. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue.

CDA in the Real World  Wiki  A wiki is a collection of web pages designed to enable anyone who accesses it to contribute or modify content.  The provider of a Wiki page usually cannot be held accountable for defamatory statements posted to the page by a user  Facebook, Twitter, Ning, etc.  Social networking sites are entitled to immunity from liability brought about by users’ libel statements.

CDA in the Real World This act extends to Defamation claims--and more. Examples:  Chicago Lawyers' Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc.  CDA immunity applied to Craigslist on Fair Housing Act claims based on discrimination in postings  Doe v. MySpace  Social networking site immune from negligence and gross negligence liability for failing to institute safety measures to prevent sexual assaults of minors and failure to institute policies relating to age verification  Gentry v. eBay, Inc.  CDA immunity applied to eBay for claims based on forged autograph sports items purchased

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