Copyright Law: DMCA and Fair Use

Digital Millennium Copyright Act (DMCA)

The DMCA was signed into law by President Clinton in October of 1998. The act was created to implement two World Intellectual Property Organization (WIPO) treaties. First, the WIPO Copyright Treaty and second, the WIPO Performances and Phonograms Treaty.[1] In addition to implementing the WIPO treaties the DMCA also added new laws to existing American copyright law. This post will discuss two of the laws added by the DMCA that have been controversial, §1201 the “anti-circumvention” rule and §512 the “safe harbor” protections.

Section 1201 Anti-Circumvention:

Section 1201 states “No person shall circumvent a technological measure that effectively controls access to a work protected under this title”[2] The act defines circumvention of a technological measure as a means to descramble a scrambled work, to decrypt an encrypted work or to otherwise avoid, bypass remove, deactivate, or impair in some was technology used to protect a work without the permission of the copyright owner. [3] It then defines a technological measure as an operation that “effectively controls access to a work.[4] On the surface this protection seems common, it allows for copyright holders to use technology to prevent infringement of their works. However, it has been used excessively and the DMCA gives these “technological measures” special protection in copyright law.[5]

Digital Rights Management (DRM) are the typical access controls that are used by copyright holders and protected under §1201.[6] The term DRM is very broad and can be applied to many different methods used by copyright holders to restrict unauthorized access and use of their works. Examples of DRM use include: preventing a user from skipping advertisements on a DVD, preventing a customer from listening to an MP3 on multiple computers. DRM technology can be used to achieve many different goals of a copyright owner, from advertising new products to preventing copying, but all uses of the technology are intended to prevent unauthorized use of a copyrighted work. A simple definition may be that the DRM’s are technological limitations put in place by IP owners to restrict full, unfettered use of a protected work by consumers.[7]

The problems with the DRM technological limitations is they have been applied in an over broad and sometimes excessive way. Examples of when DRM’s caused problems for consumers include: purchasing an ebook but not being able to read it on certain ebook readers, video games unable to play because the “authentication servers” are offline, purchasing a smartphone that can only be used on certain service providers networks.[8] It is a common belief that once a product is purchased it belongs to that person and it may be used in whatever way preferred, but the use would be illegal if is required tampering with a DRM.[9] Tampering with DRM technology and circumventing the restrictions they create can lead to being convicted of a crime carrying a five-year prison sentence and up to a $500,000 fine for a first offence.[10] The protections provided under §1201 have gone as far as to say that when a security expert discloses a defect in a copyrighted product that the experts have violated laws that protect DRM.[11]

Section 512 Safe Harbor

Section 512 provides protection from secondary copyright infringement for service providers whose users post or share copyrighted works. The sections states that a service provider shall not be liable if five conditions are met. The five conditions are: (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) No copy of the material made by the service provider… is maintained on the system or network in a manner ordinarily accessible to anyone other than the anticipated recipient; (5) the material transmitted through the system or network without modification of its content.[12]

While §512 may protect the service providers from secondary liability, it also includes a provision that allows copyright holders to require the service providers to “expeditiously” remove copyright-infringing content, otherwise known as “take down notices[13]” in order to remain under the protection of the safe harbor.[14] What constitutes expeditiously has become a debated question in the courts and seems to be a case by case determination when all relevant facts are considered.[15] Courts have held that seven months and a week were not expeditious enough, but other courts have said seven days and one day are expeditious enough. In one case that included notifications for 170 videos the court found that three-and-a-half months was expeditious.[16] There is not hard a fast rule for what will be considered an expeditious removal and what is not.

Fair Use USCS §107

Fair use, as stated in U.S. Code section 107, is a statutory right to a non-infringing type of use of a copyright protected work.[17]  In the case A & M Records v. Napster the court explains the element requirements for fair use.  A person claiming fair use must show that each factor is supportive of a finding of fair use. The factors are: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyrighted work used, in relation to the work as a whole; and (4) the effect of the use upon the potential market for the work or the effect on the value of the work.[18]  The factors are each considered and then a balancing test is applied to determine if all the factors taken together either weighs for, or against the use of the work being considered a fair use.[19]

Safe Harbor Take-Downs vs. Fair Use

As I am sure you can imagine, with copyright holder’s abilities to issue take down notices came the abuse of the use of those notices. One of the most famous incidents where a copyright holder issued a take-down notice that was contested is the case Lenz v. Universal Music Corp. In this case Lenz posted of video of her young children dancing to the Prince song “Lets Go Crazy” on YouTube.[20] The Universal employee who decided to send the take down notice did so based on the fact that the song was recognizable in the background of the video[21],  that the song played for the full length of the video (29 seconds), that the video’s title contained the name of the song, and that during the video Lenz stated “do you like the music” to her son as he danced around.   He ultimately concluded that the video infringed on the copyright because it was “very much the focus of the video.”[22]

The court analyzed the reviewing guidelines and noted that none of the considered factors included the factors of fair use, nor was fair use considered at all in determining whether to send a takedown notice to YouTube.[23] After discussing the codification of the four factors of fair use into 17 USCS §107, the court determined that because of this codification fair use was no longer an affirmative defense but was intended by Congress to be a statutory right, and a type of use authorized by law that did not qualify as infringement.[24] Leading to the ultimate decision that a copyright holder is required to consider fair use before issuing a takedown notice, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.

Questions:

(1) The DMCA provides protections for copyright holders and Fair Use prevents the abuse of those protections, do you think the existing law has done a good job of striking a balance between the two?

(2) The Dodge-Ram commercial that used Dr. Martin Luther King’s speech and was later altered using a different section of Dr. King’s same speech was considered fair use. Based on the four factors of fair use, why do you think this use would qualify?

(3) Is the case by case determination of what constitutes expeditiously an effective way to enforce take-down notices or should the courts create a more bright line rule of what is or is not fast enough?

If you think there should be a bright line, what do you think it should be?

(4) What are your thoughts on the §1201 anti-circumvention laws, should there be exceptions to these types of protections?

 

 

[1] The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary, www.copyright.gov(1998), https://www.copyright.gov/legislation/dmca.pdf (last visited Apr 14, 2018).

[2] 17 USCS § 1201

[3] Id.

[4] Id.

[5] Cory Doctorow, America’s broken digital copyright law is about to be challenged in court The Guardian (2016), https://www.theguardian.com/technology/2016/jul/21/digital-millennium-copyright-act-eff-supreme-court (last visited Apr 14, 2018).

[6] Id.

[7] What is DRM?, Digital Rights Management, http://drm.web.unc.edu/what-is-drm/ (last visited Apr 14, 2018).

[8] DRM, Electronic Frontier Foundation, https://www.eff.org/issues/drm (last visited Apr 14, 2018).

[9] Supra, America Broken Digital Copyright.

[10] Id.

[11] Id.

[12] 17 USCS § 512

[13] 17 USCS § 512(c)

[14] Carolyn S. Toto, When It Comes to the DMCA, a Red Flag Becomes Harder to Fly Internet & Social Media Law Blog (2016), https://www.socialgameslaw.com/2016/11/dmca-red-flag.html (last visited Apr 14, 2018).

[15] Carolyn S. Toto & Kimberly Buffington, The Complicated Relationship between DMCA Takedown Notices and the Word “Expeditious” Internet & Social Media Law Blog (2016), https://www.socialgameslaw.com/2016/01/the-complicated-relationship-between-dmca-takedown-notices-and-the-word-expeditious.html (last visited Apr 14, 2018).

[16] Id.

[17] Lenz v. Universal Music Corp., 801 F.3d 1126, 1133

[18] A&M Records v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. Cal. Feb. 12, 2001).

[19] Id. (A&M)

[20] Lenz, 1126.

[21] Music video of “Lets Go Crazy” to compare with video from Lenz for recognizably https://www.youtube.com/watch?v=aXJhDltzYVQ

[22] Lenz, 1130.

[23] Lenz, 1130.

[24] Lenz, 1133

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~ by mstowers5 on April 14, 2018.

10 Responses to “Copyright Law: DMCA and Fair Use”

  1. (1) I have taken IP classes on this issue and I do believe that Congress has tried to strike the right balance. I think that is the whole point of creating various factors, each touching on specific concerns and interests of copyright owners and also creating the exceptions (like the Fair Use and Safe Harbor Provisions) to account for the public interest and to avoid punishing those who had no intent or took part in prohibited conduct. Sometimes the carriers (like the companies that were intended of protection by the Safe Harbor) are just victims of third parties’ violations of copyright laws as much as the copyright owners are. Of course, there is always a concern that these “carriers” might be facilitators of copyright infringement and the Safe Harbor provisions might just not work well because it nullifies the prohibitions. Again, I guess this could be argued back and fourth. I do think, however, that these laws should be periodically revised by Congress to account for changes industry specific changes and technology.

  2. I think the case-by-case determination of what constitutes expeditiously is fundamentally a good strategy for enforcing take-down notices. However, with all things surrounding the internet, I think as the platform has developed and evolved, courts may need to evolve with it. Perhaps, instead of a blanket bright line rule, categories could be established based on size of files, types of files, the ways they’re uploaded/removed, etc. It hardly seems fair, for example, to create a bright line rule based on a situation where a website is called upon to remove one video (IE: Lenz v. Universal Music Corp.). Where, in that scenario, a week may be appropriate, a website that is called to take down 170 videos should be given a longer, proportional amount of time.

  3. 4) I’m not in favor of anti-circumvention laws. Maybe I just don’t understand the premise, but to me it seems to be more a concession to lobbying forces than a law made on solid public policy grounds. I, and many others I know, have been victims of DRM in having lost legitimately obtained music as a result of changing computers. This to me is one example overbroad application of DRM, and it’s one that makes me particularly indignant given what our principle blog poster diplomatically stated as the “common belief that once a product is purchased it belongs to that person and it may be used in whatever way preferred[.]” If a company tries to implement DRM through inadequate technology that’s easily cracked, I don’t see a reason for them not to have to deal with financial consequences of such a failing. Free market, etc.

    Honestly, maybe a reduction in the strength of anti-circumvention laws would be in the long-term interest of advocates of stronger copyright, as it would at least encourage DRM technology development. That seems to be the only real defense they have to internationally-hosted file exchange platforms that may have less respect for US copyright law. Not that that argument would ever fly in front of congress though…

  4. A fair use defense still places a fairly heavy burden on alleged infringers to prove that their use was fair, and so many alleged infringers don’t bother to defend their work, thus allowing copyright owners to abuse the DMCA and cause the take-down of material that is clearly within the realm of fair use. The factors that determine fair use are also fairly vague with a high degree of subjectivity. It can be difficult to prove without any clear cut guidelines. It seems as though there should be a more balanced method, but I’m quite sure what any improvements to the system might entail.
    Concerning the Dodge-Ram commercial, I think that the first fair use factor carries the greatest weight. The altered advertisement was made for the purpose of criticism and satire, and not to profit off of the original creator’s work.
    Lack of hard and fast rules makes it difficult for service providers to use good judgement in their actions, and it makes it difficult for them to defend the actions that they do take. It would certainly help in terms of efficiency. Seven days seems like a fairly lenient standard to evaluate the material and issue a take-down notice.

  5. (2) The Dodge-Ram commercial that used Dr. Martin Luther King’s speech and was later altered using a different section of Dr. King’s same speech was considered fair use. Based on the four factors of fair use, why do you think this use would qualify?
    I would say the third factor of  the amount and substantiality of the portion of the copyrighted work used, in relation to the work as a whole. The substantiality probably made the difference. There are some parts of his speech that are distinct and conventionally known by masses. However, there are other parts that probably less conventional, and most would not recognize that as a part of his speech, if not for his voice.

    (3) Is the case by case determination of what constitutes expeditiously an effective way to enforce take-down notices or should the courts create a more bright line rule of what is or is not fast enough?
    No, I do not think the courts need to create a bright line rule of what is and what is not fast enough. This can easily vary based on the facts of the case. And the defendant should not have to necessarily take down a video or their media until it has been confirmed that their media is in violation of copyright infringement. Otherwise, they may take the video down and realize it didn’t have to be taken down in the first place. So, take-down notices can continue to be fact-specific as they are now.

  6. (1) The DMCA provides protections for copyright holders and Fair Use prevents the abuse of those protections, do you think the existing law has done a good job of striking a balance between the two?

    I think the current law works quite well with the one caveat that it invites over enforcement by the copyright holder. I think the 9th circuit signaled in Lenz that there may be liability where a copyright holder improperly asserts a claim. On this ground, I think there is a good argument that the law is taking a step in the right direction because unless the copyright holder can affirmatively establish they considered fair use they could have damages to pay out. This will force copyright holders to think twice and negates the current incentive to over enforce.

    (2) The Dodge-Ram commercial that used Dr. Martin Luther King’s speech and was later altered using a different section of Dr. King’s same speech was considered fair use. Based on the four factors of fair use, why do you think this use would qualify?

    The four factor test focuses on the following: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyrighted work used, in relation to the work as a whole; and (4) the effect of the use upon the potential market for the work or the effect on the value of the work. In the present case, the first, second, and fourth factors are clearly satisfied. While one might argue that the underlying video was the entirety of the commercial I think this is insufficient in and of itself to allow a finding of copyright violation because the other three factors so clearly weigh towards a finding of fair use.

    (3) Is the case by case determination of what constitutes expeditiously an effective way to enforce take-down notices or should the courts create a more bright line rule of what is or is not fast enough? If you think there should be a bright line, what do you think it should be?

    I think that the enforcement of takedown notices should be quick because it prevents further loss for the copyright holder. It is almost a third party duty to mitigate damages. However, I think before changing the current framework there needs to be an adoption of the 9th circuits reasoning in Lenz, because currently the takedown notices are too broadly applied.

    (4) What are your thoughts on the §1201 anti-circumvention laws, should there be exceptions to these types of protections?

    I think there certainly needs to be protections. When a games verification server is taken down, if DRM prevents the use of that game you’ve essentially had the game taken from you. It seems that this should, at minimum, allow for bypass.

  7. I think there is a good balance between protecting a copyright’s work and the fair use exception. Using the factoral analysis for fair use, I would say the overwhelming factor in the Lenz case was the focused on the child’s dancing. I think the question that should be asked is “why are people viewing the content?” If I create I upload three photos from a Prince concert and play Purple Rain and Let’s Go Crazy over the photo collage, this would clearly not be considered fair use. I actually think the dancing baby falls somewhere in the middle because the music is still a major part of the video, but if a court can answer “why are people primarily viewing this content?” then they can balance these concerns. I don’t like the requirement that a company have a substantial good faith belief that their work is being fairly used. I think this is very subjective and if a company thought their work was being infringed then they could probably come up with a subjective good faith view. In this example, I think Universal actually has a good faith argument for asserting that a 29 second video where their song is playing the entire time, with the name of the song in the video, is the focal point of the video.

    DRM’s are interesting and I haven’t thought about it much. I had no clue this was the reason I can’t fast forward through ads or had to theoretically “unlock” my phone when I bought it from a different provider. I think it should be illegal to alter protections. I’m not sure how you balance these concerns. While I don’t like the idea of renting my phone or e-books, protecting authors is a valid concern. Maybe one solution would be to have registered, regulated companies to provide DRM features. The concept of U-Break-I- Fix comes to mind. It’s company policy to ensure that they do not fix or restore phones believed to be stolen and technology that can’t be verified by the true owner. I think some system like this could be used to unlock technology for legitimate purposes if the owner is verified.

  8. Is the case by case determination of what constitutes expeditiously an effective way to enforce take-down notices or should the courts create a more bright-line rule of what is or is not fast enough?

    I believe that the courts must create a more bright-line rule of what is or is not fast enough to comply with a take-down notice. If the courts are left up to themselves what is considered fast enough on a case by case basis, then some people may be penalized for not taking down content in a certain amount of time while others may still be under the safe harbor rule even though it takes them a longer time to remove the content.

    If you think there should be a bright line, what do you think it should be?

    I believe that one month (30 days) is a long enough time for a take-down notice to be received and for the content provider to take down such content. I would allow an extension to the content provider if they are able to show that they content cannot be taken down in such a short amount of time.

    (4) What are your thoughts on the §1201 anti-circumvention laws, should there be exceptions to these types of protections?

    I believe that if a person aims to circumvent the laws for their own personal use and does not interact with any other people or allow any other people to benefit from circumventing the rules, then this should be a valid exception. Yet, if the actions of a person allow a commercial market, or more than one person, to benefit from such circumvention, then I believe the law should remain in place as is to provide a strong protection for copyright holders.

  9. The anti-circumvention tactics are interesting. The Library of Congress decides what is allowed or not. Two or three years ago it decided that phones could be unlocked. The major phone companies reacted very negatively. They did not want consumers to be able to unlock the phones. Today, I believe that you cannot unlock until your contract period is ended. There is also a push on now to remove some copy right protection from dead video games. The argument for making them widely available is that since the companies are no longer maintaining the games and haven’t sold the IP, they wouldn’t lose any money from allowing the public access since they were no longer interested in making money off the IP. At the moment, the industry is fighting the proposal.

    The take down provisions are definitely being abused. I currently know at least two artists who have received take down notices for posting their own work in other online content they’ve produced. Mostly, it is big corporations or their agents that do these take down notices. The options to respond are not very helpful to someone who might be an individual or a small business. Still we want to be sensitive to small artists whose work can also be stolen. I do think there needs to be some discussion within the community of IP practitioners to see if a better framework can be established. Perhaps some standards on what expeditious should be under a range of situations. Proactive work instead of reactionary work would be nice.

    The King family, and the other families of notable celebrities, have to be so careful how the images or works of their deceased loved ones can be used. The second video took Kings words AND their meaning to show he was against rampant consumerism such as displayed by Dodge-Ram. In the Dodge Ram commercial, it stripped his words of meaning and arguable perhaps could ruin the association with the real words. There is a law suit going on now against a Broadway producer who is putting on a version of To Kill a Mockingbird. The estate of Harper Lee is suing saying the producer has created an Atticus Finch, which according to the estate does damage to the intention of Harper Lee. Should be an interesting case to follow.

  10. (1) The DMCA provides protections for copyright holders and Fair Use prevents the abuse of those protections, do you think the existing law has done a good job of striking a balance between the two?

    I think no. The reasoning in the Lenz case seems adequate on its face, to require that the copyright holder consider possible fair use before issuing the notice, but I think the law as a whole fails to consider the chilling effects of current copyright protections vs. fair use rights. Most companies, like YouTube, have internal policies to just immediately remove the disputed material so that they get the full benefits of the Safe Harbor provision. They have little incentive to fight for the uploader who is potentially protected by fair use. By this, the public’s fair use rights are being ignored at little more than the copyright holder’s attention being brought to the situation.

    (2) The Dodge-Ram commercial that used Dr. Martin Luther King’s speech and was later altered using a different section of Dr. King’s same speech was considered fair use. Based on the four factors of fair use, why do you think this use would qualify?

    I think the purpose and character of the use controls here. The original content was an advertisement for Dodge for commercial purposes. The altered version interposes more of Dr. King’s speech to convert the material into political speech. I think the character of this exercise of political speech ‘raises the bar’ for arguing fair use, because political speech is a highly-protected form of speech.

    (4) What are your thoughts on the §1201 anti-circumvention laws, should there be exceptions to these types of protections?

    I think these laws are extraordinarily unwise, albeit within the State’s power. As we’ve contentiously discussed before, I frown somewhat on intellectual property as a whole as anti-social and against the public interest. Even though IP has merits and public value in encouraging private industry, these anti-circumvention laws are too much of a windfall to the private actor at the expense of the public. For example, many old products are still protected by IP and these anti-circumvention laws, even though the owners don’t profit off of the material. Not injecting these IPs into public domain is an issue in itself, but the existence of these anti-circumvention laws chills any activity that could generate public value, which the IP owner isn’t currently doing.

    Perhaps anti-circumvention laws should have their own statutes of repose well before the termination of the copyright, so that old IPs can be gradually reintroduced into the public sphere.

    Further, public safety exceptions for whistleblowers should be mandatory, like the example of the insulin pumps which were vulnerable to dangerous outside manipulation. It is patently unreasonable to prosecute these expert whistleblowers for the benefit of a single private entity at the expense of the much-larger public’s health.

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