1 Application of the DMCA Steve Baron February 12, 2008

2 Today’s Agenda  Review basic provisions of DMCA  Discussion of Perfect 10 v. CCBill

3 Outline of DMCA  Passed in 1998  Provided new weapons for content owners to assert on technological and legal fronts  Title I – criminalizes the possession and sale of certain technologies that allow consumers to access copyrighted works.  Title II – makes it easier for content owners to identify potential infringers and take down their infringing content

4 Outline of DMCA  Title I (17 U.S.C. § 1201) – Three major provisions: Anti-circumvention ban Anti-circumvention ban Trafficking ban Trafficking ban Copyright protection circumvention device ban Copyright protection circumvention device ban Exceptions: Exceptions: Reverse engineeringReverse engineering Identifying elements to achieve interoperabilityIdentifying elements to achieve interoperability Defenses under copyright, including fair useDefenses under copyright, including fair use

5 Outline of DMCA  Title II – Subpoena and Take Down Powers 17 U.S.C. § 512 Limits liability of internet service providers (ISPs) Limits liability of internet service providers (ISPs) Grant of immunity from contributory infringement Grant of immunity from contributory infringement Safe harbor where ISP’s network has been used to transmit, rout, or provide Internet connections for material or for the intermediate and transient storage of materials in the course of such transmitting, routing, or providing materials.Safe harbor where ISP’s network has been used to transmit, rout, or provide Internet connections for material or for the intermediate and transient storage of materials in the course of such transmitting, routing, or providing materials.

6 Outline of DMCA  Title II (cont’d) ISP must establish a notice an take down mechanism to allow copyright holder to alert ISP to the existence of infringing material and request that access be disabled. ISP must establish a notice an take down mechanism to allow copyright holder to alert ISP to the existence of infringing material and request that access be disabled.

7 Perfect 10 v. CBill  Who’s who? Perfect 10 = Plaintiff Perfect 10 = Plaintiff CBill, CWIE = Defendants CBill, CWIE = Defendants  What’s the problem? Perfect 10 makes money by selling “adult entertainment” to subscribers Perfect 10 makes money by selling “adult entertainment” to subscribers CWIE provides webhosting service and CBILL processes credit cards for e-commerce. CWIE provides webhosting service and CBILL processes credit cards for e-commerce.

8 Perfect 10 v. CBill  What did Perfect 10 accuse defendants of doing?  Did Perfect 10 serve notice and take down letters?  Did the trial court grant immunity under safe harbor?

9 Perfect 10 v. CBill  Ninth Circuit

10 Perfect 10 v. CBill  Ninth Circuit Court of Appeals Provides further information about the requirement for duly implementing a repeat infringer policy Provides further information about the requirement for duly implementing a repeat infringer policy Holds that DMCA take-down notices must individually comply with the statute’s notice requirements and that a service provider’s receiptdoes not trigger take-down response. Holds that DMCA take-down notices must individually comply with the statute’s notice requirements and that a service provider’s receiptdoes not trigger take-down response. Offers further insight into what might constitute interference with “standard technical measures.” Offers further insight into what might constitute interference with “standard technical measures.”

11 DMCA or YMCA?