under construction

  1. under construction
  2. Legal Guide
    1. Introduction
    2. DMCA - Digital Millennium Copyright Act
      1. [http://en.wikipedia.org/wiki/WIPO_Copyright_and_Performances_and_Phonogram …
      2. [http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limit …
      3. Safe Habor
        1. [http://www.eff.org/files/filenode/EFF_bootcamp_DMCA.pdf 8 things to …
      4. Take down notices
        1. Minimum requirements of notice:
      5. Counter notices
      6. Putting material backup

Legal Guide

Introduction

The content of this guide is not a legal advice. The information on this document is related to some common legal cases faced by online services providers, specially the ones with user-generated content such as forums, blogs, open publish news sites etc. Our goal is to inform about the law's and how to procedure on the cases listed at this document.

Most of the content is from other sources, it has it's own licenses, so please check links to wikipedia, EFF bootcamp slides and handouts and other sources we used along the document for their license of use if you want to reproduce their content. For the rest, this guide is copyleft, for non-commercial use only.

If you are part of SFCCP and need legal advice, please contact the organization group at org_@_mail.sfccp.net. If you aren't, you can check with EFF, they have helped CCP's in the past and other individuals and organizations. They are doing a great job defending our rights on the internet.

DMCA - Digital Millennium Copyright Act

DMCA is a United States copyright law, provisions:

DMCA Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act:

Section 102
Section 102 gives the act its name, which is based on the requirements of the WIPO Copyright Treaty concluded at Geneva, Switzerland, on 20 December 1996.

Section 103
Section 103 provoked most of the controversy which resulted from the act. It is often called DMCA anti-circumvention provisions. Its advocates claim that it restricts the ability to sell devices which circumvent copyright protection, adding Chapter 12 (sections 1201 through 1205) to US copyright law.

However, Section 1201 creates several exceptions to this rule:

  • it will not affect rights, remedies, limitations, or defenses to copyright infringement, including fair use;
  • it is not necessary to design components specifically to use copy protection systems;
  • "nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products";
  • circumvention for law enforcement, intelligence collection, and other government activities is allowed;
  • reverse engineering to achieve interoperability of computer programs is allowed;
  • encryption research is allowed;
  • systems to prevent minors from accessing some internet content are allowed to circumvent;
  • circumvention to protect personal information by disabling part of a system is allowed; and
  • security testing is allowed.

In addition, the statute has a "primary intent" requirement, which creates evidentially problems for those seeking to prove a violation. In order for a violation to be proved, it must be shown that the alleged violator must have primarily intended to circumvent copyright protection. However, if the primary intent is to achieve interoperability of software or devices, the circumvention is permitted and no violation has occurred.

DMCA Title II: Online Copyright Infringement Liability Limitation Act

Online Copyright Infringement Liability Limitation Act (OCILLA), a portion of the Digital Millennium Copyright Act known as DMCA 512 or the DMCA takedown provisions, is a 1998 United States federal law that provided a safe harbor to online service providers (OSPs, including Internet service providers) that promptly take down content if someone alleges it infringes their copyrights...

...In exchange for this, the OSP gains:

  • new protection from liability to its own customers as a result of a decision to remove material.
  • clear procedures for removing and restoring material.
  • a safe harbor against copyright infringement claims, similar to the protection against non-intellectual property infringement liability provided by Section 230 the Communications Decency Act (CDA).

Customers gain through a reduced chance that works will be removed unnecessarily by an OSP which hasn't received an infringement complaint.

Safe Habor

A safe harbor is a provision of a statute or a regulation that reduces or eliminates a party's liability under the law, on the condition that the party performed its actions in good faith. Legislators include safe-harbor provisions to protect legitimate or excusable violations.

8 things to remember for service providers

  1. Register a Copyright Agent!! Instructions at www.copyright.gov/onlinesp/.
  2. The DMCA Safe Harbors are Only for Copyright Infringement. Not trademark, obscenity, defamation, celebrity publicity rights, or anything else.
  3. Implement and Notify Users that Repeat Infringers Will be Terminated. Put the policy in your Terms of Use and create a system that flags users who draw multiple DMCA takedowns for possible termination.
  4. The Six Requirements for a Compliant Takedown Notice: In order to be effective, a DMCA takedown notice must be written communication (e.g., email,letter,fax) and must:
    1. include a physical or electronic signature of the copyright owner or her representative;
    2. identify what work is being infringed;
    3. identify the material that is claimed to be infringing, along with information sufficient to permit you to locate the material on your site.
    4. include contact information for the complaining party.
    5. include a statement that the complaining party has a good faith belief that the use is not authorized by the copyright owner, its agent, or the law.
    6. include a statement that the information in the notification s accurate, and udner pernalty of the perjury, that the complaining party is authorized to act on behalf of the copyright owner.
    Technically, if a notice fails to include at least (2),(3),and(4), you are entitled to ignore it. Nevertheless, it's generall a good idea to contact a complaining party to give them a chance to amend their notice to comply with all 6 requirements.
  5. Take Down Blatant and Obvious Infringements When You Come Across Them: Although you have no obligation to seek out or monitor for infirngements, when employees come across content that is obviously infringing, they should notify the Copyright Agent, who should review it and take down obvious infringements.
  6. Keep Good Records of Takedowns and Terminations: If challenged, you want to be able to show a court how seriously you took your DMCA responsibilities.
  7. The DMCA Does Not Require Takedown in Every Instance. You need to have a notice and takedown procedure if you want the DMCA safe harbors, but sometimes you don't need the safe harbors because what your users are doing isn't infringing. So you can make exceptions in appropriate cases without losing your DMCA protections.
  8. Notify Users About the Counter-Notice Procedure. Section 512(g) of the DMCA allows users to ssend counter-notices when their material is improperly targeted by a DMCA takedown. If the service provider and the user have complied with the requirements of the counter-notice , the service provider may restore the content after 10 business days.

There are other provisions that we are not covering here. For more information about this law we recommend that you read the page about it on wikipedia, the law text, also try to understand what DRM means.

At this Guide we will cover the steps a DMCA has to actually be a 'take down notice' and the steps on how to respond to it:

Take down notices

Minimum requirements of notice:

  • In writing
  • Proved to designated agent
  • Includes 7 specific items:

Counter notices

Putting material backup