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While initially the challenges were focused on clear applications to software-based access control products, some cases considered how the DMCA also extended to hardware-based access controls.
Universal City Studios, Inc. Corley - Eight movie studios had sued Eric Corley , Shawn Reimerdes, and Roman Kazan, editors of The Hacker Quarterly , for posting the code of DeCSS , an algorithm to bypass the Content Scramble System CSS used to encrypt DVD content.
The studios argued this was an anti-circumvention device under the DMCA. While Reimerdes and Kazan entered into consent decrees and were dropped from the suit, Corley continued the case, arguing that DeCSS as computer code was protected as free speech, and that this was one of the allowed provisions of fair use under the DMCA for users to make copies of media they legally owned.
Both the District Court and the Second Circuit rejected Corley's arguments. While they agreed that while a computer program may be protected speech, distribution of anti-circumvention devices was not considered a fair use option covered by Section , and thus DeCSS violated the DMCA and was not protected by First Amendment rights.
United States v. Elcom Ltd. Adobe requested the U. Department of Justice take action against the company for violating the DMCA.
Elcom argued in court that as written, the DMCA was unconstitutionally too vague and would allow for circumvention of use controls for purposes of fair use, and that it violated the First Amendment by placed too much burden on those seeking to use protected works for fair use.
The initial ruling at the U. District Court for the Northern District of California rejected both arguments, following on the basis of Corley.
The ruling established that the DMCA was not unconstitutional, and that while it place a burden on accessing works for fair use, the DMCA did not outright restrict fair use; in the case of the ebook example, the ruling observed that the user may have to type a quote from the ebook rather than copy and paste from the unprotected version.
Metro Goldwyn Mayer Studios, Inc. The company sought declaratory judgment from MGM Studios that their software did not violate the DMCA, or sought to have the DMCA ruled unconstitutional.
The case, heard in the United States District Court for the Northern District of California, ruled against Studios on both arguments, based on the past rulings from Corley and Elcom that Studios' software was not protected speech and violated the DMCA with no respect to fair use, and that the questions on the constitutionality of the DMCA were answered from the prior cases.
The case law from Corley , Elcom and Studios effectively established that the DMCA could not be challenged as an unconstitutional law. Chamberlain Group, Inc.
Skylink Technologies, Inc. Chamberlain had developed a security protocol for its remotes to match the remote to the door opening motor via a software-based rolling code as to prevent unauthorized opening.
Skylink had been able to use a resynchronization feature of the Chamberlain security software as to create a universal remote to work with the Chamberlain openers.
Chamberlain sued Skylink as it argued the rolling code was effective an access control device and thus Skylink violated the DMCA.
Both the United States District Court for the Northern District of Illinois and the United States Court of Appeals for the Federal Circuit ruled in favor of Skylink that there was no DMCA violation.
The courts ruled the DMCA did not create a new property right, and thus consumers that owned Chamberlain's product had a right to circumvent any restrictions, since this was typical practice on the market and customers, in purchasing a Chamberlain garage door opener, did not sign off to any end user license agreement to waive away those rights.
Lexmark International, Inc. Static Control Components, Inc. The mechanism used an access program from the printer side that would then query a chip on the ink cartridge, and only accept that cartridge if it matched the expected response.
Static Control Components had been able to reverse engineer the proper response by reading the program from the printer and were able to make their own third-party ink cartridges that worked with Lexmark printers.
Lexmark sued under the DMCA and while they had won at the District Court, the case was reversed by the United States Court of Appeals for the Sixth Circuit.
The Sixth Circuit affirmed that while Lexmark's programs to manage the lockout were copyrightable and thus would be eligible for protections under the DMCA, they had failed to include an anti-circumvention device that "effectively controls access" to the printer lockout program.
The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances.
One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction.
Another area involves linking to software or devices which are designed to circumvent digital rights management devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.
In July , American Civil Liberties Union filed a lawsuit on the behalf of Benjamin Edelman, a computer researcher at Berkman Center for Internet and Society, seeking a declaratory judgment to affirm his first amendment rights when reverse engineering the censorware product of defendant N2H2 in case he intended to publish the finding.
N2H2 filed a motion to dismiss, which the court granted. In August , the DVD Copy Control Association won a lawsuit against RealNetworks for violating copyright law in selling its RealDVD software, allowing users to copy DVDs and store them on a harddrive.
The DVD Copy Control Association claimed that Real violated the DMCA by circumventing anti-piracy measures ARccOS Protection and RipGuard , as well as breaking Real's licensing agreement with the Content Scrambling System.
The complaint was filed in the U. District Court for the Southern District of New York. Viacom claims the popular video-sharing site was engaging in "massive intentional copyright infringement" for making available a contended , unauthorized clips of Viacom's entertainment programming.
Google relied on the Digital Millennium Copyright Act's "safe harbor" provision to shield them from liability. On June 23, , U. District Judge Louis Stanton granted summary judgment in favor of YouTube.
Viacom appealed to the U. Court of Appeals for the Second Circuit. On April 5, , the federal Second Circuit Court of Appeals vacated Judge Louis Stanton's ruling, and instead ruled that Viacom had presented enough evidence against YouTube to warrant a trial, and the case should not have been thrown out in summary judgment.
The court did uphold the ruling that YouTube could not be held liable based on "general knowledge" that users on its site were infringing copyright.
The case was sent back to the District Court in New York,  and on April 18, , Judge Stanton issued another order granting summary judgment in favor of YouTube.
The case is over; no money changed hands. On June 23, , IO Group, Inc. District Court for California's Northern District. IO Group alleged that Veoh was responsible for copyright infringement by allowing videos owned by IO Group to be accessed through Veoh's online service without permission over 40, times between the dates June 1 and June Veoh is a Flash video site relying on user contributed content.
IO Group argued that since Veoh transcoded user uploaded videos to Flash format it became a direct infringer and the materials were under their direct control, thereby disqualifying them for DMCA safe harbor protection.
Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users.
Veoh preselects the software parameters for the process from a range of default values set by the thirdparty software But Veoh does not itself actively participate or supervise the uploading of files.
Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users.
The Court has granted the Veoh's motion for summary judgment , on the basis of the DMCA, holding that the defendant's video-sharing web site complied and was entitled to the protection of the statute's "safe harbor" provision.
After numerous DMCA takedown notices in response to his eBay listings, Timothy S. Vernor sued Autodesk in August , alleging that Autodesk abused the DMCA and disrupted his right to sell used software he bought at a garage sale.
Court of Appeals for the Ninth Circuit reversed, holding that "a software user is a licensee rather than an owner of a copy where the copyright owner 1 specifies that the user is granted a license; 2 significantly authorised the user's ability to transfer the software; and 3 imposes notable use authorisations.
In , Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania made a home video of her month-old son dancing to the Prince song " Let's Go Crazy " and posted a second video on the video-sharing site YouTube.
Four months after the video was originally uploaded, Universal Music Group , which owned the copyrights to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act.
Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored.
YouTube complied after six weeks—not two weeks, as required by the Digital Millennium Copyright Act—to see whether Universal planned to sue Lenz for infringement.
Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song.
In August , U. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material.
On February 25, , Judge Fogel issued a ruling rejecting several of Universal's affirmative defenses, including the defense that Lenz suffered no damages.
In , the court ultimately upheld the finding that Universal was liable under 17 USC f the DMCA's bad faith notice and takedown provision for failing to consider fair use before sending its initial takedown notice.
In the case of Flava Works Inc. Gunter the court denied the defendant safe harbor protection under DMCA 17 U. The district court found that the defendant had knowledge of its users' infringing activity and also failed to prevent future infringing activity.
As such the plaintiff's motion for preliminary injunction was granted. MercExchange, L. In this case of Ouellette v.
Viacom International Inc. Despite potential fair use claims, the court found it impossible to use the DMCA takedown provisions as a foundation for liability.
The court found that the safe harbor provision serves "to limit the liability of internet service providers, not to create liability that could not otherwise be imposed under existing law independent of the DMCA.
In January , Sony Computer Entertainment sued George Hotz over violating the Section of the Digital Millennium Copyright Act as well as the Federal Fraud and Abuse Act due to facilitating consumers to jailbreak their PlayStation 3 consoles.
After three months, Sony and Hotz decided to settle out of court. This also included an injunction against George Hotz, barring him from hacking any more Sony products.
In , Oliver Hotham wrote an article on WordPress owned by Automattic, Inc. Steiner sent WordPress a DMCA takedown notice claiming that Hotham's article infringed their copyright.
Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act,   quoting results from a study by California academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse.
Currently, there are three main abuses of the DMCA. First, fair use has been a legal gray area, and subject to opposing interpretations.
This has caused inequity in the treatment of individual cases. Second, the DMCA has often been invoked overbearingly, favoring larger copyright holders over smaller ones.
Efforts to reduce the fees associated with agent registration by expanding the Copyright Office's enforcement funding are ongoing.
Who Can Issue a DMCA Notice? Anyone can — including you. Upon finding your content on another site that has published it without your knowledge or consent, you are well within your rights under the DMCA to issue a takedown notice to the ISP hosting that site.
Another way the DMCA offers protection to publishers is by not requiring an attorney or any other legal entity to issue takedown notices. You can do this yourself, in letter format, as long as the notice contains certain pieces of information:.
Some online entities, such as Google , Creative Commons , and Automattic the parent company of WordPress. If the ISP you must contact doesn't provide an online form, you may have to mail the notice via postal service.
Per the DMCA, ISPs are required to name an agent to respond to takedown notices and to provide that agent's contact information to the Register of Copyrights.
Your DMCA notice must be sent to the appropriate ISP's agent. If you're unable to find that contact information on the ISP's website, you can look it up in the US Copyright Office database.
A few things in this world can't be accomplished by a third party and a nominal fee. If you own a personal blog or a very small website, you may not want to incur the expense of a service when you can simply write a letter yourself.
But if you're a major publisher with dozens of websites, many or all of which have had content stolen, using a DMCA notice service can save you a lot of time and effort.
Protecting your content is worth the investment. When someone steals your content, your first thought is to issue a Digital Millennium Copyright Act DMCA notice.
But what if the content thief is based outside the United States? Do US copyright laws extend beyond the country's borders? Even if they do, how are you going to enforce them from across an ocean?
A reverse scenario is also possible. Maybe you're the one who lives outside the US, and your content has been appropriated by someone in the United States.
Can you use a DMCA notice? A DMCA takedown notice is basically a formal request made to the person or entity who has — whether purposely or mistakenly — taken your content without your permission, asking that they take it down.
If they comply with your DMCA notice, you're all done. If they don't, you may have to pursue the matter through legal channels.
The DMCA puts into practice two World Intellectual Property Organization WIPO treaties. Copyright, intellectual property, and content theft aren't new concepts created by the proliferation of the internet.
They've been issues for hundreds of years. However, it is only fairly recently that national organizations and governments decided to take action.
Created in , by a convention that took place in Stockholm, Sweden, part of the WIPO's stated purpose is "to encourage creative activity, to promote the protection of intellectual property throughout the world.
With the advent of the publicly accessible internet, the WIPO's purpose has become even more important. As of , there are members of the WIPO , which is headquartered in Geneva, Switzerland.
In contrast, there are UN countries in the world. The organization administers roughly 25 international treaties, including the ones implemented by the DMCA.
It's important to understand the WIPO's existence and purpose, and the fact that so many countries are members because this is what's going to help you if your content is ever stolen by someone, whether you're the one in the US or not.
The key to whether or not a DMCA notice will work anywhere outside the US depends on two things — where you're located, and where the site that stole your content is hosted.
If you're inside the US, and the site where your content has appeared without your permission is hosted in any of the WIPO member countries, you can confidently issue a DMCA takedown notice and expect the site's owner to comply.
Of course, DMCA notices are not guarantees of cooperation, and someone who's in, say, Hungary may not feel they need to comply with a DMCA issued by someone in the US.
If this occurs, you do still have legal recourse, although the international aspect of the case may make things a bit more complicated, not to mention expensive.
If the site where your content has been published is hosted in a country that is not a member of the WIPO, you may have a bit of a difficult time getting it removed.
You can reach out to the site owner yourself, but if you don't get a response or compliance, you may want to consult an attorney.
If you're outside the US, and someone in the US has published your copyright-protected content on their website, you can also issue a DMCA notice, and expect full compliance.
Again, there's no guarantee of that, and you may have to pursue legal action. The same issues apply if you are outside the United States and the infringer is too.
See You're Inside the United States above. Before you issue a DMCA notice yourself , though, check the rules where you live.
They may vary from country to country. If the thought of issuing a DMCA takedown notice in your own country is intimidating enough without the complications of turning it into an international incident, consider using a DMCA service.
They can handle all the paperwork and headaches for you, and guide you through the entire process. Usually, in addition to international treaties set up for intellectual property issues, DMCA services may work with counterpart services in other countries, which can expedite the process.
Finding your content published on another site without your permission is no picnic. But at least now you know that if and when it happens, and the offending site is not located in the same country that you are, you still have recourse and can protect your intellectual property.
It would be bad enough to wake up one morning and discover someone had stolen some of your online content and published it on their own site without your permission.
But what if you were the one doing the stealing? Or at least, being accused of stealing? What then? Yes, a DMCA notice is essentially an accusation of theft, but no one is going to show up at your door with handcuffs, so just take a deep breath and remain calm.
Then ask yourself a question, "Did I steal someone else's content? If the answer is yes, comply with the DMCA notice immediately, and then take it as a lesson you should have already known — stealing is wrong, and you shouldn't do it.
With the way the internet works, and with as many tools as are available for people to monitor their content and be alerted if it appears anywhere but on their own site, stealing content is just a DMCA notice waiting to happen.
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