Last month, the MPAA began sending out a "university oolkit" to several universities across the US. These toolkits monitor network traffic and created graphs and charts showing the prevalence of file sharing across the school networks. The toolkits were built upon open source software that is licensed under the GPL. After the MPAA refused requests to disclose the code, one of the coders filed a DMCA notice demanding that the toolkit be taken down.
The Electronic Frontier Foundation, a leader in the protection of Internet rights and the open source community, has issued six principles to help copyright owners “minimize collateral damage” and standardize approaches in removing infringing user generated content.
The Six Steps are:
A Wide Berth for Transformative, Creative Uses. The intent is to allow a wide degree of interpretation and leniency in the definition of “Fair Use” in the sense of parody, comment and criticism, in appeasement to and protection of the potential largely non-lawyer portion of the population. Especially in areas that are transformative or non-commercial in nature.
Filters Must Incorporate Protections for Fair Use. In the realm of automated software checking for and removing content, it is recommended that additional steps be taken to accommodate for potentially “Fair Use” associated content. The steps include applying a matching test for completeness of product, allowing humans to overrule automated processes, and ensuring the minimum amount of intimidation and encroachment in areas of free speech and public comment.
DMCA Notices Required for Removals. Service providers must require DMCA compliant take down notices before removing user generated content.
Notice to Users upon DMCA Takedown. It is also important to educate the users of these services, particularly in instances of repeat violators. By issuing the notice of infringing content and educating the user on what is and what is not “Fair Use”, the user is put on notice and is also better equipped to comply with the law in the future.
Informal Reconsideration Process. If a user feels that their content was removed or blocked for unwarranted circumstances, a procedure or process should be created to allow for review, allowing users to petition in an informal and user friendly manner.
Mandatory Reinstatement upon Counter-notice or Retraction. Users, Service Providers and Copyright Owners should all be informed of instances when content is returned, “put-back”, or unblocked, allowing for further comment, or simply to ensure that all interested parties are appraised of the matter.
You can view the entire release here .
On October 16, 2007, the Honorable Audrey B. Collins granted Ticketmaster a preliminary injunction forbidding RMG Technologies form using automated programs or "bots" to navigate Ticketmaster's website and purchase tickets.
RMG's technology allowed its customers to circumvent Ticketmaster's identification and security precautions, thereby allowing RMG's clientèle to purchase tickets faster than Ticketmaster's human clients, allowing for the mass purchase of tickets for resale value at much higher prices.
Interesting in this case, is that the Judge found that the harm done to Ticketmaster was not loss of sales (as RMG clients were purchasing all the tickets from Ticketmaster at full market value), bu the harm to goodwill and reputation, citing customer complaints about the unavailability of tickets.
Furthermore, the court also found grounds in the claim of Computer Fraud and Abuse Act(CFAA), citing that RMG "intentionally accesse[d] a computer without authorization or exceed[ed] authorized access, and thereby obtain[ed] information from any protected computer," 18 U.S.C. section 1030(a)(2)(c), or that RMG "knowingly cause[d] the transmission of a program… and … cause[d] damage without authorization to a protected computer." This portion falls into previous rulings that use of a computer to the extent that it may cause harm or slow down a computer has been deemed a violation of the CFAA. However, because Ticketmaster failed to demonstrate a minimum of $5,000 in damages (which should have been a fairly easy step.) the court avoided ruling on the CFAAA claim as to the preliminary injunction, citing that RMG was sufficiently in breach of other claims that it was not necessary.
Lastly, we see again that a company which advertises that software or an application is able to circumvent any other companies protection measures, is going to get you into trouble. We first saw this type of ruling from the courts in Metro-Goldwyin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) where the courts ruled that because Grokster advertised that its application and file sharing techniques allowed second party individuals to violate copyright laws, Grokster was liable for "intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting form direct infringement while declining to exercise a right to stop or limit it." Although this is not file sharing of media files as is the more common modern version of copyright infringement, a website is considered copyrighted material, and therefore circumventing protective measures to gain access to a copyrighted website will get you into trouble both with the DMCA and Copyright Law.
In the end, do not advertise that your application, software, or techniques circumvent protective measures, or allow for the violation of any law or right, including copyright.
The DMCA provides in section 17 U.S.C. section 512(c) several “safe harbor” provisions for service provider's connection to infringing online materials. These safe harbor provisions are usually applicable when a service provider is either unaware, unable to be aware, or unable to regulate the content that is being transmitted or shared. However, the DMCA safe harbor provisions were initially intended to protect for Web Hosts and service providers, and not necessarily the web sites themselves, but that was before the introduction of user content based websites such as YouTube, Myspace, Craigslist, and many others.
However, the DMCA does require that service providers adopts and utilizes policies to both terminate repeat infringers and apply standardized acceptable procedures in the prevention of copyright infringement.
If you are planning on developing, operating, or maintaining a website which authorizes, encourages, our utilizes user generated content, there several things which one should take into account in regards to protecting yourself from law suit.
1. Ensure that your website and its use falls under the specifications of the DMCA “safe harbor” provisions, whether that be section 512(c) or any other provision.
2. Develop a policy and procedure in which the website is able to remove content which has been flagged as infringing material and notification of both the content provider and the user who submitted the infringing material.
3. Let your site take its natural course. In other words, it would behoove the website owner to minimize the control of material submitted by users on the website. The more control the Owner and maintainers of a website exert, the more the owner/maintainer will be responsible for the content which users upload.
4. Do not target any revenue generating plans at infringing or potentially infringing content. One of the major downfalls of Grokster were the advertisements which encouraged users to infringe on copyrighted materials.
5. Do not directly infringe either by content posted by the owner or maintainer of the website, or encouraged. If you encourage infringement or post the content yourself, it is more likely that a court will deny any “safe harbor” provision protections.
6. Attempt to the largest degree possible the licensing of content from providers. The more licensing agreements a website is able to sign, the less likely someone will bring suit.
Please consult an attorney for any specific advice in regards to the DMCA, or Website Compliance.
*This article was written by Jeffrey C. Neu, Esq. an Internet and Technology Lawyer in New Jersey.