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Digital Millennium Copyright Act (DMCA) definitions - Defined Term us digital millennium copyright act 1998 definition

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Digital Millennium Copyright Act (DMCA) 1 definitions Add definition × Browse Digital Mastering Digital Materials Digital Media Digital Micromirror Device [DMD] Digital Millennium Copyright Act Digital Millennium Copyright Act (DMCA) Digital Mixing Digital Multimedia Br gnzumnow. outlet moncler online italiaoadcasting Digital Negative Digital Network Architecture Digital Object This definition has not yet been approved by a moderator. Digital Millennium Copyright Act (DMCA) from Tech Policy for Startups: Glossary of Terms and Legislation (2016) by Center for Democracy and Technology

Passed in 1998, the Digital Millennium Copyright Act implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes technology, devices, or services intended to circumvent controlled access to copyrighted works. In addition, it heightens the penalties for copyright infringement on the Internet.

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The first sale doctrine applies only to the owner of the copy, but not to the person to possesses the copy without ownership. For example, the owner of a copy of a given symphony by Dmitry Shostakovich can rent it to an individual. However, the person who is renting the piece of music cannot rent it to someone else.

Relevant Links Wikipedia article Bobbs-Merrill Co. v. Straus Fair Use

Fair use is the right to use copyrighted material for limited purposes and without authorization of the author. The traditional definition was the right to comment upon, criticize, or parody any given work. The principle of fair use is intended to incorporate and balance the right the right of free speech granted under the United States Constitution. The Copyright Act of 1976 includes several provisions for fair use:

The quotation of excerpts in review or criticism for the purpose of illustration of comment Use in parody Summary of an address or article, with brief quotations in a news report Reproduction by teacher or student of a small portion of the work to illustrate a lesson Reproduction of the work in legislative or judicial proceedings

There are four fair use factors codified in the Copyright Act of 1976. These are for use by judges as fair use is the most commonly used defense when copyright is infringed. The four factors are as follows:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purpose The nature of the copyrighted work The amount and substantiality of the portion taken in relation to the copyrighted work as a whole The effect of the use upon the potential market for or value of the copyrighted work

Purpose and character of the use requires an analysis of whether the use is transformative . This question asks whether the defendant added original material to the copyrighted work. This can be in the form of insight, aesthetics, or understanding. For example, a parody changes the original work by holding it to ridicule. A copyrighted musical piece may be used for a brief amount of time because it creates a distinct mood.

The Nature of the copyrighted work is very important in determining whether something is fair use. The main question the prosecution will ask is whether the copyrighted work was informative or entertaining. The Supreme Court decided in Sony Cop. of America v. Universal City Studios that copying a news broadcast has more claim to fair use than copying a motion picture. The reason is that copying from informative sources promotes the exchange of scientific ideas, according to the Supreme Court ruling.

Amount and substantiality of portion used is also very important in determining whether a copyright infringement qualifies as fair use. This rule of thumb simply states that the more of a work is taken, the less likely it is to quality as fair use.

Effect of the use on the potential market is the final factor in determining whether or not something qualifies as fair use. It must be determined whether the copyright infringement affected the potential marketability of the given copyrighted work. However, this does not have to reflect any intention of the copyright holder. For example, in the case Rogers v. Koons , the infringement took place when a photograph was adapted into a wooden sculpture. Despite the fact that the copyright holder never intended to adapt the work into a wooden sculpture, the possibility still existed; therefore, it was ruled as a copyright infringement.

Relevant Links Wikipedia article Copyright.gov Standford Salinger v. Random House Works Made for Hire Definitions

A work for hire is a work where the copyright owner paid someone else to create the work for them. The reason this exception to the general rule that authors own the copyright of a work exists was so that businesses could control the rights over a given work that someone else created. There are two ways that a work would qualify as a work made for hire:

The work was created by an employee within the scope of such employment The work is commissioned under a written agreement

If the work falls under one of these methods, the hiring party is the author and the copyright owner of the work. In addition, the person paying for the work will appear of the application for registration.

Within the scope of such employment does not mean that the work had to be created at a job or that the work was created at the given job. It means that it was within the scope of what is expected from an employee.

Commissioned Works

A commissioned work is a work that was created by an independent contractor. These works are not classified as works for hire unless the following three conditions are met:

The work is specially ordered or commissioned The work is used in a group of special categories There is a written agreement signed by both parties indicating it is in fact a work made for hire. Categories

The second condition is very important, and unless the work falls under one of the following eight categories, it cannot be considered a work made for hire:

A contribution to a collective work (see above) As a compilation (see above) As a translation As a supplementary work As a part of a motion picture As an instructional text ("a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities." A test or answers for a test An atlas

This applies only to works created by independent contractors. A work made by an employee under the scope of employment is always a work for hire, regardless of whether it falls under one of the categories.

Relevant Links Wikipedia article 17 U.S.C § 101 CCNS v. Reid Copyright Notice Details

A copyright notice serves as the most forward sign that a work is copyrighted. Congress required every publication to have a copyright notice. There were drastic penalties if the copyright notice was missing. In fact, there are a great deal of works that fell into the public domain because the publisher or printer either neglected to include a copyright notice or issued the item with a defective notice. The reason Congress required the copyright notice was that it informed the public that a given work was not in the public domain.

This law changed in 1988 when the United States passed the Berne Convention Implementation Act . Congress amended the Copyright Act of 1976 so that works no longer were required to have a proper copyright notice. Therefore, anything published on or after March 1st, 1989, does no need to have a copyright notice. Even though it is not longer a requirement in any of the Berne signatory countries, it is still strongly encouraged to include a copyright notice because some countries do not belong to the convention. Therefore, a work would not be protected there.

Any given copyright notice must have three elements: the symbol © or the word "Copyright”; the year of first publication; and the name or abbreviation of the owner of copyright. The order does not legally matter, as it was never established by either the 1909 law or the Copyright Act of 1976. The law is set forth in 17 U.S.C § 401(b) :

Form of Notice. — If a notice appears on the copies, it shall consist of the following three elements: (1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and (2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Although the term "Copyright" is acceptable, it is generally recommended to always use the copyright symbol ©. The reason is that this is the only accepted symbol of copyright protection under the Universal Copyright Convention (UCC). Phonorecords of sound recordings use the symbol ⓟ (the letter P in a circle).

Visually Perceptible Copies

A copyright notice is required on all visually perceptible copies , which is something that can be seen either directly or with the aid of a device. Some copies, such as a recording or film, are not visually perceptible. Therefore, a copyright notice is not required for these. According to 17 U.S.C 401(a) :

Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. First publication

Any given copyright notice must include the date the work was first published. This can mean either when the copies were first distributed to the public or when the work was first offered for distribution, public performance, or public display under the authority of the author or copyright owner. With musical works, publication takes place when copies of a work are legally sold or distributed to the public or when they are offered for sale or distribution - as in advertisements, publisher catalogs, or listings on the backs of other scores. A musical work is not considered published if it was recorded and the recording was distributed to the public prior to 1978. If the recording was published after that date, however, the embodied musical work is considered as published at the same time the sound recording was. According to 17 U.S.C § 101 , a publication is the following:

The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Recordings

Similar to the © symbol, which represents the word "copyright", the Ⓟ symbol used to protect sound recordings stands for the word "phonorecord". Unlike the copyright symbol, however, there is no legal substitution for the Ⓟ symbol. In other words, that symbol must appear on the work. This notice should appear on the packaging or the disc itself.

Derivative Works

A derivative work's copyright notice should include the owner of the derivative and the year of first publication of the derivative. Some authors choose to indicate a range of years for a given work in order to indicate the original and derivative versions:

Example: © 1990, 1992, 1998, 2001 Collective Works

A copyright notice for a collective work usually protects all the works within that collection. It is generally advised, however, for the copyright owner to have a copyright notice placed on each individual work. This prevents a copyright infringer from claiming that it was an innocent mistake.

Omission

The omission of a copyright notice can result in the loss of copyright ownership. This depends, however, on the date the work was published. This has no effect on works published on or after March 1, 1989. An omission of a copyright notice can occur under several conditions:

The notice does not contain the copyright symbol, the word copyright, or the appropriate abbreviation. The notice is dated more than one year later than the date of the first publication. Location of the notice does not give a reasonable notice of the claim of copyright. If the notice lacks the name or date. This applies only if the date was required. Copyright Act of 1909

In order for a work to be protected under the Copyright Act of 1909, it was required to have a valid copyright notice. If it were published without a notice or with a defective notice, it would fall into the public domain. Position of notice was also important under the 1909 statute. For music (Class E), the notice was required to appear on either the first music page or the title page (or both). Some foreign works published without a notice after 1922, however, can be restored for protection. They must meet all of the following conditions:

The work is public domain in the United States only because the author failed to follow certain formalities. One author, when the work was created, was a member of an eligible country. An eligible country is any country that is a member of the Berne Convention or the World Trade Organization (WTO). The work must have been published in such a country. The work must still be under protection in the eligible country in which the work was published (the "country of origin"). Relevant Links Peter Pan Fabrics, Inc. v. Martin Weiner Corp. Between January 1, 1978 and March 1, 1989

Under the Copyright Act of 1976, there are certain provisions where an omission of copyright notice may be excused. This is under section 405 :

The notice was omitted from no more than a relatively small number of copies or phonorecords After the error has been noticed, there is a reasonable effort to add the notice The notice is omitted in violation of a written agreement. After March 1, 1989

The United States, in the 1980's, was the only country that still terminated protection due to the lack of a copyright notice. In order to become a signatory country of the Berne Convention, a copyright notice would not need to be required. If a work was published after March 1, 1989, it will not lose protection due to the lack of a copyright notice.

Useful Chart Published before 1978 Determine if the omission was an accident or mistake under section 21 of the Copyright Act of 1909. Between 1978 and 1989 Determine if omission can be corrected under section 405 of the Copyright Act. Published after March 1, 1989 Copyright notice not required Work was published outside the United States See rules on restored copyrights, Circular 38b . Relevant Links Wikipedia article Sound recording symbol Transfer of Copyright Licensing and Assignments

According to 17 U.S.C. § 101 :

A transfer of copyright ownership is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

In order for any author to transfer rights, he must use one of the following three methods:

Nonexclusive license Exclusive License Assignment Nonexclusive License

A nonexclusive license allows a given company to public or perform a work for some period of time. The author receives, in return, periodic payments called royalties. The person granting the rights is the licensor and the person paying for the license is the licensee. When a license is nonexclusive , more than one licensee may acquire the same right.

Exclusive License

Only one party acquires a right under an exclusive license. This arrangement may, however, be limited in time or location. For example, a music publisher may acquire the right to sell a foreign work for 6 years. In other words, after that time period the rights must return to the owner.

Assignment

An assignment is any given transfer of ownership rights. The person assigning the rights is called the assignor, while the person receiving the rights is called the assignee. Once this transfer has occurred, the author no longer owns the copyright of a work. This does not mean, however, that the original author cannot still receive periodic payments.

Transfer of Copyright

A transfer of copyright may occur in other ways. The following are the three most common ways:

Upon death By operation of law Involuntary transfer Upon Death

Any given copyright owner should have a beneficiary in their will. In other words, someone to whom the copyright should be transferred upon the author’s death. If the author does not have a will, the way the rights are transferred vary by state. In most states, however, they are passed on to the significant other or children. This commonly results in co-ownership of copyright.

Involuntary Transfer

According to 17 U.S.C § 201(e) :

When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title except as provided under Title 11.

Under certain situations, copyright ownership can be transferred without the consent of an author. This most commonly occurs in a bankruptcy proceeding because the court must transfer copyright ownership to pay creditors. Sometimes this involuntary transfer of copyright is called a transfer under the "operation of law.”

Useful Chart: Methods of Transferring Copyright Ownership Assignment or exclusive license An assignment is a transfer of ownership interest whereas an exclusive license is a grant of rights so that no one can be granted a similar right. Both require a written agreement. Transfer upon death Copyright can only be transferred to a beneficiary with a valid will. Otherwise, the transfer will depend upon interstate succession laws. Involuntary transfers In some situations, a court can order the transfer of copyright. This is sometimes called "under the operation of law.” Termination of Grants

Under sections 203 and 304 of the law, authors, heirs or assigns have the right to terminate "grants, transfers, or licenses" made for works previously exploited. There are certain works and grants which cannot be terminated under these provisions. They are the following, according to 17 U.S.C § 203 :

Works made for hire Works governed by foreign law Grants made in an author's will

Under both sections of the law, only the author, a designated person exercising his rights, or his heirs have the standing to terminate. The rules governing who is entitled to terminate grants, transfers and licenses is specified in section 203 (a) (2).

Grants made before 1978

Under the provisions of section 304 (c) of the law, there are two five-year windows of opportunity for authors or their heirs to take back works (referred to as 'termination of grants, transfers and licenses): Window 1 commences 56 years after the date of first publication or registration and Window 2 commences 75 years after first publication or registration. Since the initial 28-year term of all works published in 1977 (the last year of the publication-based copyright term) ended on December 31, 2005, all works assigned, published or registered before 1978 are in their 67-year renewal term.

Assigned, published or registered 56-61 years ago Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will. Assigned, published or registered 75-80 years ago Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will. Grants made after 1977

Under the provisions of section 203, termination may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.

Work published before the date of grant Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will. Work published after the date of grant Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will.

The termination prevents the creation of any new derivative works under license from the original assignee, but derivatives legally issued before termination may continue to be exploited by the previous assignee. In addition, the termination only applies to those grants made under the jurisdiction of US copyright law. Grants made in other jurisdictions are not likely to be subject to termination under these provisions, even if the author or the heirs relocated to US jurisdiction after the fact.

International Copyright Treaties The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works was the first international copyright treaty. It was organized in 1886 and is still administered by the World Intellectual Property Organization (WIPO). There are three main provisions in the Berne treaty:

The minimum copyright term of life of the author plus 50 years No formalities such as a copyright notice or registration are required for copyright protection Certain moral rights must be protected. Moral rights prevent someone from distorting, mutilating, or modifying the work.

The two provisions that prevented the United States from joining the treaty were the formalities and the moral rights. American copyright owners, however, wanted to benefit from the Berne protection. Therefore, congress modified the copyright act and the result was the Berne Convention Implementation Act , which was a series of amendments beginning in 1989.

The Universal Copyright Convention

This was created in 1952 under the direction of UNESCO. The United States became a signatory country in 1955. For IMSLP, there are two important provisions:

Every UCC member nation must give national treatment to the authors of other UCC countries. If the copyright owner uses the copyright notice required by the UCC (©, name of owner, year), the owner is excused from any formal requirements by another UCC nation.

The UCC requires a copyright notice; however, the Berne Convention does not. United States authors, however, should still use a copyright notice. The reason is that several countries, such as Cambodia and Laos, belong to the UCC but do not belong to Berne. Therefore, the work will not be protected in these UCC countries.

The Buenos Aires Convention of 1910

This was ratified in 1911 and the United States joined in 1914. This treaty is between the United States and sixteen Central and South American Nations. The only formality required, under this treaty, is the phrase "All rights reserved.”

GATT

This treaty, signed in December of 1994 by President Bill Clinton, was intended to harmonize international trade. Over 100 countries signed the GATT agreement. This treaty also included an agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which is especially important for IMSLP. There are three important provisions:

Each GATT signatory cannot require formalities, such as a copyright notice, and copyright must last for at least life of the author plus fifty years. The GATT/TRIPS agreement does not have a moral rights requirement. Every GATT member country must have penalties for copyright infringement. These include injunctions and monetary damages. Every GATT member country must provide a means to prevent infringing works at the border.

GATT also established the World Trade Organization (WTO) that supervises each country. The United States amended copyright law to permit automatic restoration of copyright for some works that were public domain in the United States.

Resources Internal Links Public domain Catalog of Copyright Entries IMSLP:Copyright Reviewers External Links Wikipedia articles Copyright Law of the United States Bilateral Copyright Agreements of the United States DMCA Sweat of the brow List of Copyright Cases Copyright Office Complete Copyright Law (Title 17) Records Nations' copyright relations with the US Useful Links Detailed Copyright Term Chart All Versions of Copyright Act since 1909 Legal Cases Copyright Cases Arnstein v. Porter (1947) Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (1976) Dawson v. Hinshaw Music, inc. (1990) Feist vs. Rural (1991) Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. (1998) Bridgeman vs. Corel (1999) Golan v. Holder — Current Retrieved from " http:///index.php?title=United_States_Copyright_Law&oldid=1656806 "

What Are The Pros and Cons of the DMCA? June 30, 2012 by Richard Chapo

The Digital Millennium Copyright Act is a controversial law, to say the least. The “DMCA” receives more than its fair share of criticism, but in truth it is a solid method for trying to deal with a difficult online legal subject. Let’s take a look at the pros and cons of the DMCA.

Introduction

The DMCA is a law that is designed to encourage online sites and ISPs to work with copyright holders through DMCA agents to protect copyrighted materials. In exchange for providing such assistance, the sites and ISPs are given immunity from copyright infringement claims.

Pros of DMCA

The positives aspects of the DMCA depend on one’s point of reference when using it. For copyright holders, the law provides a mechanism for obtaining the removal of infringing material on the web in a low cost, simple manner.

Imagine you’ve slaved over your Great American Novel for ten years. You are finally done with it and decide to publish it on your own. The novel is a hit. After a few months, however, you start finding large chunks of it being posted in forums. People are essentially giving away pieces of your novel for free!

Traditionally, you would need to hire a lawyer like myself and start suing people. This would be expensive. It would also take a good bit of time for the case to work its way through the judicial process. To be blunt, most copyright owners would not have the resources [$$] to pursue such actions. The DMCA provides a solution to this problem.

Under the DMCA, a copyright holder can simply give notice of the copyright infringement to the site or service in question. If I see big chunks of my novel published on Facebook, I can give Facebook notice of the violation, and they MUST take down the offending content. The person who posted the material can then claim they have the right to post it. Most never respond.

This process provides a big benefit to the copyright holder. The infringing material is removed, and they avoid the cost of a lawsuit.

What about the site owner or service served with the copyright infringement notice? By complying with the procedures called forth in the DMCA, the entity is granted immunity from liability for the offence. With the potential damages being as high as $150,000 per each violation, the value of this protection cannot be understated.

Again, let’s consider an example.

I own a forum on how to make a bajillion dollars online. Yes, a “bajillion” because a million just isn’t that much anymore. Individuals sign up as members. They then post comments and materials related to making money online on the forum.

One of my members posts a video from a series of videos he purchased from the latest guru in the money making field. The guru sends in a copyright infringement claim to me under the DMCA. Known as a “takedown notice,” I am required to “expeditiously” remove the content from public viewing on the site. I do so and give the member who posted the content notice of the claim. The poster does not respond, and the material stays down.

In this situation, the copyright owner cannot sue me for infringement. Their sole recourse is to sue the member who posted the content. Furthermore, the member cannot sue me for any copyright issue either. By following the dictates of the Act, I’ve placed myself within the “safe harbor” provisions of the law that protect me from being sued to kingdom come.

And what of the person who posted the allegedly infringing content? The DMCA provides them with no protection whatsoever. The only benefit they might receive is most copyright holders drop the matter once the material is removed.

Cons of DMCA

The negative aspects of the DMCA became apparent soon after it was signed into law by Bill Clinton in 1998. Abuse is the primary problem.

Individuals, groups and companies use the DMCA takedown provisions as a hammer against anyone posting their content, even if there is a legal basis for doing so. Since sites can avoid being sued if they take down the allegedly offending content, they tend to do so even if there is no merit to the infringement claim. An example can help show how this works.

I own a forum the covers the political going-ons in the United States. The forum conversations get somewhat heated as you might imagine. One of the members of the forum, John, starts posting videos on YouTube expressing his political views. Another member of my forum with the opposite political leanings, Bob, locates the videos and posts them on my forum along with scathing remarks.

John blows his top and sends me a copyright infringement notice per the DMCA rules. What am I going to do? I could be dragged into a copyright lawsuit if I don’t take the content down. If I do take it down, I am exempt from being sued. You can probably guess what most sites do – they take the content down.

This scenario plays out over and over online, and it is becoming a real problem. Why? Most individuals posting content have neither the time nor the monetary resources to fight false DMCA claims. In the example above, the use of the videos arguably falls under the “fair use” exemption to copyright law. However, Bob is unlikely to pursue such a claim because who wants to spend the time and money doing so?

Copyright abuse is an enormous negative aspect of the DMCA. It acts as a form of censorship, and is the biggest failing of this law without a doubt.

In Closing

Is the DMCA the worst “Internet law” ever passed as some critics claim? Not by a long shot. The law actually represents a relatively novel approach to dealing with a very difficult subject. Is it a perfect law? No. There are definite pros and cons to it. The goal for lawmakers at this point should be to try to emphasize the positives and fix the negatives. Given the glacial pace at which Congress works, it appears as though we will be stuck with the current law for the foreseeable future, warts and all.

Richard A. Chapo, Esq.

Filed Under: Copyright and DMCA

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