Transcript A Decade Under the DMCA

A Decade Under the DMCA
Marcia Wilbur
The Digital Millennium Copyright Act
October 28, 1998 - Present
Introduction

Brief Overview of Copyright

What is the DMCA

Key Areas

Cases

Notification/Counter Notification
DMCA
What is the DMCA?
In 1998, a law was passed amending Title 17 –
Copyright Act
Extension of Current Copyright Law
What is Copyright?

According to the Library of Congress (2004),
copyright is protection for "original works of
authorship fixed in a tangible medium of
expression. Copyright covers both published
and unpublished works."
How does copyright work?
Copyright law is directed to promote the progress
of science and useful arts by securing for
limited times to authors and inventors the
exclusive rights to their respective writings and
discoveries (Heller, 2005).
Encouragement of Learning?
The Copyright Act in the United States was
previously known as the Act for the
Encouragement of Learning (Greene, 2005)
Restricts Encouragement of Learning?
Who Owns Copyright?

creator

joint creators

employer

agency
A work is considered protected under copyright
as soon as it is fixed in a tangible form.
Public Domain

copyright law is not applied to public domain
materials

free to use and download by any party

No permission is needed and no penalties

Government documents are not covered by
copyright
Orphan works

Permission is sought but can not be acquired
due to questions as to who owns the copyright
to the work.
Fair Use
4 Factors:
1.) The use can not damage the market for the
copyright owner.
2.) The portion of work used is taken into
consideration.
3.) The purpose of the work is considered.
4.) The nature of the copyrighted work is
considered.
Origins of Copyright




In 1534, King Henry VIII implemented censorship by
means of licensing.
E monopoly to one printing company as long as they
censored anything that royalty found unworthy.
Printed materials opposing the royals were censored.
Anyone who printed materials offensive to the Crown
was punished.
A proclamation was declared in 1538, informing the
citizens that mere possession of offensive printed
materials was punishable (Greene, 2005).
Current Copyright




1946: 11, 550 words.
1975: 22,310 words.
1976: 61, 600 words.
2000: 124, 320 words in the copyright
statute.
Other Laws
Audio Home Recording Act (AHRA)
Important Fair Use Doctrine
No Electronic Theft Act (NET)
Antitrust law/Sherman Act
Offers Patent like protection – Patent Law
Jurisdiction
First Sale Doctrine in commerce
Other Laws



Communications Act of 1934 – Subpoenas
section violates privacy protections for cable
subscribers in the Communications Act of 1934
set forth in 47 U.S.C. § 551(c)(1);
First Amendment – Section 512(h) violates the
First Amendment rights of internet users
TEACH Act of 2002 – DMCA doesn’t allow
digitizing analog, TEACH allows limited amount
Key Areas
Anticircumvention
Copyright and Fair Use
Derivative Works
DMCA Safe Harbor
Subpoenas and Privacy
Reverse Engineering
Notifications
1201 (1)(A)

No person shall circumvent a technological
measure that effectively controls access to a
work protected under this title.
What can be considered a
protected work? – FROM LOC

literary works;

musical works, including any accompanying words

dramatic works, including any accompanying music

pantomimes and choreographic works

pictorial, graphic, and sculptural works

motion pictures and other audiovisual works

sound recordings

architectural works
Restrictions
No one can
 manufacture
 import
 offer to the public
 provide
 traffic
in any
 product
 service
 technology
 device
or
 component or part thereof
Technological Measure to Effectively
Control Access to a work
A Technological measure `effectively controls
access to a work' if:
the measure, in the ordinary course of its operation, requires
the application of

information

a process

a treatment
with the authority of the copyright owner
to
gain access to the work.
Circumvent a technological measure
is to:

descramble a scrambled work

decrypt an encrypted work
or

otherwise to avoid, bypass, remove, deactivate,
or impair a technological measure, without the
authority of the copyright owner.
What is Technology?


A simple wooden spoon can be seen as
technology
It's an extension of our arms, so that we can stir
our food and not have to use our hands,
resulting in not burning ourselves
Cases
DeCSS

Several suits were filed




2600
2600CT
72 Individuals and websites claiming CSS as a Trade Secret
Jon Johanssen
What is DeCSS?
a. Something to argue about in LiViD
b. Utility for stripping Cascading Stylesheets
c. CSS descrambler
The Challenge

The court doesn't have jurisdiction
(wrong parties, procedural problems)

DeCSS doesn't circumvent

DeCSS is within one of the exceptions

1201 is unconstitutional
Result


Jon Johanssen – Cleared of charges in January
2003
2600 lost, appealed, lost and decided not to go
to the Supreme court

Protests

Many Mirrors – Social dissent

Positive outcome!
DVC-CCA v. Bunner


DVC-CCA sues dozens who live outside CA.
Claimed defendants misappropriated trade secrets by
publishing DeCSS.

California Supreme Court

Bunner

DVD CCA summarily dismissed its claims after the California Supreme
Court ruled that computer programs could be preliminarily restrained
from publication only in very narrow circumstances.

The California Court of Appeals ruled that those circumstances were not
met in Mr. Bunner's case because the program was not a trade secret at
the time it was published, but instead was widely available around the
world.

Thanks for sharing!!!!! ;)
DVC-CCA v. Pavlovich

Pavlovich – resident of Texas

Jurisdiction rules for internet cases


DVD CCA went to U.S. Supreme Court review
of the decision
Rejected
Positive outcome!

From 2600:
“ People the world over know all about the DMCA
and are committed to overturning it. The
amount of education that has occurred in the
last two and a half years is simply phenomenal.
There are many other combatants now in the
fight and we have never been more convinced
that we will ultimately prevail.”
Result
Protests:
The first ever DMCA Protest – March 2000
Washington D.C.
Say No to DMCA
What is this DMCA ?
Items That May Be
Used for Circumvention
Which of the following items is not considered a
circumvention device?
1. Shift Key
2. Magic Marker
3. Staple Remover
4. Eraser
5. White out
6. Screwdriver
Other Cases
Dmitry Sklyarov
1337 Speak Trailer – Star Wars
Charter
Diebold
Penn State – Usher.mp3?
Wal-mart
Fatwallet
Gamespy
YouTube v. Viacom
Dmitry Sklyarov
Rot 13
Guvf vf gur ynzrfg rapelcgvba rire
Arrq V fnl Zber?
Free Dmitry

Russian Cryptographer

Worked at Elcomsoft in Russia

Gave Presentation at DefCon

Was arrested in Las Vegas
Dmitry Protests – San Francisco

What do they want?

Free Dmitry
Dmitry Sklyarov
Graphic created in GIMP by Kraken
Charges: FBI arrested for distribution of a product
that circumvents copyright protection
Results: Charges dropped in exchange for
testimony.
Dmitry Protest March – SF 2001
1337 Speak Trailerz
LucasFilm vs. Star Wars

Marc Nuar created a 1337 trailer.
50, i|\| 7|-|3 (fashion) 0f g30rg3 1u(45, m4r(
r3(3iv3d 4 DMCA |\|07ifi(47i0|\|
1337 Speak Trailer
Marc: I received the C&D via e-mail from
Lucasfilm and a copy from my webhosting
service when they suspended my account.
I did not make any official counter-notification.
What I did do was tell my hosting company that
I would remove all questionable material so that
I could be guaranteed as little downtime as
possible for my webspace. I also sent an e-mail
response to Lucasfilm, but never heard back
from them.
CoreAVC
Alan Nisota
CoreAVC is a project by CoreCodec that implements an
H264/AVC video decoder in software.
This is the video format used by most Blu-Ray and HDDVD movies, and is commonly referred to as MPEG4
(though MPEG4 spans a wide range, and this is the
hardest of the formats to deal with).
CoreAVC is by far the fastest software decoder for this
content available, allowing many machines to play
High-Def content that would otherwise be unable to.
CoreAVC

coreavc-for-linux started as a set of patches to
mplayer to support the initial CoreAVC release
(0.0.4) so I could use it in Linux.

MPlayer list

Betaboy says Linux version coming


Eventually CoreCodec released version 1.2,
and later version 1.3.
Alan made patches
CoreAVC

Mplayer doesn’t add patches to code base

Alan starts coreavc-for-linux on Google

Project includes

Windows DLL loader code from mplayer with my
patches applied

a script to patch it into mplayer

a patch for xine

patch to use the code in MythTV
CoreAVC

Alan wanted 64 bit, wrote a server app for that

CoreAVC 1.7 comes out

Mail from Google, project takedown
“Infringing Materials Hosted on and/or Linked To From
the Site. The Site hosts and/or contains one or more
links to CoreAVC, which contains CoreCodec;s
copyrighted Software. We have directly verified by
downloading the file from the Site provided by
Google Inc. that the file does include CoreCodec's
copyrighted Software.”
Violation?
Alan was surprised:
“I had never linked to or hosted any CoreAVC
binaries. The code hosted at the coreavc-forlinux site was all either from mplayer, licensed
under the GPL and distributed apropriately, or
code that I wrote myself. “
“Google was actually very helpful in the matter,
advising me of all my rights, hosting the notice
on chillingeffects.org and allowing me to verify
the contents of the site before disabling access
to it.”

CoreAVC


“I was able to confirm that neither I nor anyone
else had placed links to or copies of CoreAVC
on the coreavc-for-linux site before it was
removed. Google recommended that I file a
counter-claim, but for personal reasons I
decided not to go down that avenue. I figured
that was the end of coreavc-for-linux.”
Mailing list – offer for negotiation with CoreAVC
CoreAVC Negotiation

2 Complaints from CoreAVC

Use of trademark (not a DMCA issue…)

Reverse Engineering
Alan notes: “that (a) this is not what their take-down
notice claimed, instead specifically mentioning
hosting/linking of copyrighted software, and (b) it is
my understanding of the DMCA that reverseengineering for the purposes of interoperability are
permitted. “
Negotiations CoreAVC


Alan signed a formal request to reverse
engineer and use trademark
Granted
Reverse Engineering



Circumvention is usually required for reverse
engineering
Prevents reverse engineering of those
measures that control access to a copyrighted
work
But there is an exception
Reverse Engineering Exception

Computer Programs can be reverse
engineered, if:

Program is lawfully obtained

Engineer seeks permission from the copyright
owner

Uses results to create interoperable computer
program

Do not publish the results

Final program must interoperate with software

Can not interoperate with protected content
Reverse Engineering –
Chilling Effects

Reverse engineers must carefully consider their
planned work and whether it fits into the
exception, because the exception is far too
narrow to be useful for many reverse
engineering needs.
Charter Communications

RIAA wanted 150 names

p2p

Charter goes to court

Result: 8th Circuit Court of Appeals
RIAA CAN NOT use pre-litigation DMCA
subpoenas
No case, no subpoena
Verizon

Riaa requests identity of 1 user

Alleges KaZaA use

Verizon refuses

D.C. District grants subpoena

D.C. Circuit Court of Appeals agreed with
Verizon
Usher? Or No
From Matt Soccio:
I received a forwarded message from our security
office with the full text of the C&D notice. No one ever
told me what materials were supposed to be removed.
Marcia: Was the notification a DMCA notification as per
section 512a? In other words was it official?
Matt: Well, it was supposed to be an official 512a notice,
but it didn't specify any offending content per that
paragraph.
Usher? Or No
Marcia: Was this considered a priority issue?
Matt: Very much so. We immediately reformatted policy
and notified users that the Astronomy Department
does not have the resources to get involved with
copyright violations and that any transgression would
be between the perpetrator and the security office. So
on top of a media circus there was also heated policy
debate.
Even though the notification was invalid, the school took
it seriously.
Usher or No?
Marcia: Approximately how much time did it take
to realize what had happened, that it was Prof.
Usher's file in question?
Matt: I am still not sure that it was Prof. Usher's content
that sparked this. Since it was never stated in the
notice what caused the red flag for RIAA, and we had
several media files that were not in violation, whenever
actually knew if it was /pub/usher or some
/pub/randomuser/*.mp3.
I don't know how the Usher reference came into this. I
had never heard of Usher before this, so I would have
never made the connection.
Matt’s final comments





I realized this was a blunder on the part of RIAA.
I understand that copyright protection is an issue,
especially on college campuses…
…The DMCA fails when it puts enforcement in the
hands of the copyright owner instead of central
governing/judicial body.
RIAA's carelessness in cases like this is a pretty solid
reason why there needs to be some form of impartial
intervention before the notices are sent off.
RIAA's PR guy told me that a temp made a mistake.
Walmart
Daniel Papasian – Parody
For a class project, Daniel created a parody of
Walmart Foundation website.
His ISP received a DMCA Notification
Marcia: … But I felt the fear that comes when a large
corp. are making attacks. And trust me, for a brief...
very brief moment, I was scared of legal action.
Daniel: Yeah, it is ridiculous, and I too was scared for a
few days. It was only the immense support and
reassurance of public interest lawyers and unions that
calmed me down.
Walmart Foundation Parody –
Fair Use
Marcia: Do you think your site content was within
the bounds of fair use? Why?
Daniel: I think the site was certainly within the
bounds of fair use. …and in my case, the site
was a clear parody. It wouldn't be legal if I used
The Wal-Mart Foundation's website as a model
for a website for my own charity, but to make
social and political commentary on the Wal-Mart
Foundation is speech, and in my opinion,
protected speech.
Walmart Parody –
No Counter Notification
Marcia: Did you make a counter notification? Do
you have any suggestions or advice to others
who might get a C&D?
Daniel: I haven't made a counter notification.
My best advice is to publicize the cease and
desist as much as possible.
Even if you decide the best thing to do is to
comply, public support and attention can never
hurt.
Fatwallet

Fatwallet receives notification to remove sales
information from site

Fatwallet complies

Walmart files for subpoena


Fatwallet states: Prices are NOT copyrighted
but Fact – sue!
Walmart backs down
Gamespy
Online-gaming service provider
Sent Luigi Auriemma, an Italian hacker a ceaseand-desist letter
Required Luigi to remove advisories and utilities
about vulnerabilities
? Jurisdiction ?
Gamespy notification
Marcia: Was the C&D within the requirements
stated by the DMCA?
Luigi: They talked specifically about DMCA, CFAA
(computer fraud and abuse act), the Lanham
Act and trademark abuse in this order in the
part of the C&D where they listed the amount of
money they wanted from me.
Gamespy
Marcia: Did you make a counter notification?
Luigi: Today was the first time I heard about this
thing so I have searched on Internet... so no, I
have not used it.
Another DMCA violator?
a. Records audio from a movie –
Hello Dolly - Bypassed
macrovision DRM
b. Archives the audio for future
use
c. Shares DRM cracked music
with his friend
d. watches Hello Dolly on an
IPOD (not available through
the iTunes store)
courtesy of Jesse Willis
http://www.sffaudio.com
Another DMCA Violator?
The Beatles?
Second Life
From the Linden Lab FAQ:
Can I sign notifications and counter-notifications
with my Second Life avatar name?
We will not accept notices that are not signed by a real
legal person. The DMCA process is a real-world
process with real-world ramifications.
Linden Labs FAQ
Can you change the DMCA process?
The Digital Millennium Copyright Act is
federal law, passed by the United States
Congress. Linden Lab does not have the
power to change congressional acts.
You Tube
Viacom
Result: Motion Granted
User Names, IP, Videos viewed
Give 'em everything!
Google States User Privacy Concerns
“merely speculative”.
Judge Louis Stanton
Another DMCA Violator?
CNN?
Reuters?
Yahoo?
Reuter's reporter Grant Gross
pointed it out In yet another example of how the Digital Millennium Copyright Act
could trample on the First Amendment, Reuters may have violated
the U.S. law by describing in a story this week how Sony’s “copyproof” protection for CDs can be defeated with a magic marker. “
“
Subpoenas – 512 h



A judicial subpoena is a court order that must
be supported by a case or controversy at the
time of its issuance
Violates the privacy protections for cable
subscribers in the Communications Act of 1934
set forth in 47 U.S.C. § 551(c)(1)
Violates the First Amendment rights
Reverse Engineering or…
Design Theft
Where is the line?

Curiosity and research

Exploiting for fun
Or

Exploiting for monetary purposes
DMCA AGENTS
Agents – Who are they?
Many companies have a DMCA agent. The DMCA agent handles
the notifications, counter notifications and works to remedy any
alleged infringement claims that are valid according to company
policy and the law.
A complete list of DMCA agents is located at the Library of
Congress Copyright site.
http://www.copyright.gov/onlinesp/list/
GoDaddy
ICANN accredited registrar and according to their
website, the world's largest domain name
registrar.
Over 9 million domains to manage! Founded in
1997.
GoDaddy receives DMCA notifications and
according to their DMCA agent, a very nice
gentleman, as long as the claims meet the
requirements for a notification, the site is left down
for 10 days.
GoDaddy
While there are some counter notifications, many
people take down whatever content allegedly
infringes copyright, because the domain owners
would rather not have their sites left down for any
period of time.
GoDaddy DMCA Agent:
“ Users understand through the agreement for
service the terms of service.”
Notifications 512(c)(3)(A)
Written and provided to the designated agent of
the service provider and include:
A physical or electronic signature of the person
authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed. This
could be a lawyer, legal representative, copyright
owner, etc.
Identification
Identification of the copyrighted work. If there are
multiple copyrighted works at one online site those
that are to be covered by one notification, a list of
the works must be included.
Identification of the material that is allegedly
infringing. This is the material that is intended to
be removed or access to which is to be disabled.
Location, Location, Location
The information for identification must be
“reasonably sufficient” for the service provider to
locate the material most likely for the sole purpose
of determining the content is present and for the
removing or disabling of access to the materials
allegedly infringing.
Contact Information
The address, phone number and if available, the
email address where the complainant can be
contacted.
Statement of Good Faith
A statement that the complaining party has a good
faith belief that use of the material in the manner
complained of is not authorized by the copyright
owner, its agent, or the law.
Statement Under Penalty of Perjury
A statement that the information in the notification
is accurate, and under penalty of perjury,
that the complaining party is authorized to act on
behalf of the owner of an exclusive right that is
allegedly infringed.
Do I get a Copy?
YES!
The Host/Carrier/Service provider must supply
the user with prompt notification and a chance to
respond.
The host or ISP must take reasonable steps
promptly to notify the subscriber that it has
removed or disabled access to the material.
Make sure your contact info is current!!
Notification Situation
A user of Comcast states that he received a
notification regarding Bit Torrent.
 The user had a partial copy of the movie
“Scarface”.
 What should the user do?
A. Reply to the email
B. Remove partial copy
C. Counter Notify
D. Email Comcast: “Say hello to my little friends”

Notification Situation
A user of Comcast states that he received a notification regarding
Bit Torrent. The user had a partial copy of the movie “Scarface”.
What should he do?
After 3 violations, apparently Comcast denies
service. Read the agreement you signed with
Comcast.
Suggestions:
Find alternative means to watch media
Don’t share the partial amount
Knowingly Misrepresentation
Violations by Parties Notifying
“knowingly materially misrepresent[ing] … that material or
activity is infringing.”
If you file a counter notifcation, and your claim is substantial,
filing another notification for the same material is a violation of
the DMCA.
Wendy Seltzer and the NFL
Knowingly Misrepresentation
Violations by Parties Notifying
“knowingly materially misrepresent[ing] … that material or
activity is infringing.”
2. If the information is not infringing, the sender knows it, and
you receive a notification!
Invalid Notifications!
Each Work MUST BE Identified.
The information for identification must be
“reasonably sufficient” for the service provider
to locate the material most likely for the sole
purpose of determining the content is present
and for the removing or disabling of access to
the materials allegedly infringing.
Invalid Notifications!
ISP Sends Nothing
Do nothing :)
ISP Sends Something/Shuts your service
Send Letter to ISP :(
Counter Notifications
Written statement by the person who has “access
restricted” or “materials removed” by an ISP or
host due to a DMCA copyright infringement
claim and notification by a copyright owner or
representative of a copyright owner.
The counter notification is sent to the ISP.
This is written communication to the ISP
Customer relations, DMCA agent or
representative responsible for handling DMCA
complaints and counter notifications.
Counter Notifications –
Time frame for restoration of service
The ISP is then required to resume service within
10 to 14 business days unless Complainant
provides notification that they has filed
paperwork seeking a restraining order.
.
Counter Notifications
The counter notification can be used to regain
access to your service.
The ISP must comply.
The only case where the ISP may not replace
your material or enable your service within 14
days is if the person or entity originally alleging
infringement files an action for a restraining order.
Then the ISP's hands are tied.
Counter Notifications
To file a counter notification:
Provide in writing by fax or snail mail
1. Your name, phone number, email address.
Counter Notifications
2. If applicable, the specific material alleged as
infringing that was removed with location.
3. If applicable, the specific alleged reason for
disabled access.
Counter Notifications
4. A statement that you, (or) the Respondent,
consent to the jurisdiction of Federal District
Court for the judicial district in which
Respondent’s address is located .
(If outside the US, Delaware County,
Pennsylvania)
5. Respondent will accept service of process
originating from Complainant or an agent of
Complainant.
Counter Notifications
1.
"I swear, under penalty of perjury, that I have a
good faith belief that each image or article
identified above was removed or disabled as a
result of a mistake or misidentification of the
material to be removed or disabled."
Counter Notifications
Signature of the Respondent or a representative
person authorized to act on behalf of
Respondent.
Generated Counter Notification
Chilling Effects has an auto generator
http://www.chillingeffects.org/dmca/counter512.pdf
Fill in the fields and get your Counter Notification
Exemptions to the DMCA
Lists of Internet locations “domains, uniform
resource locators (URLs), numeric IP addresses
or any combination thereof.” – Censorware
Computer programs protected by dongles that
prevent access due to malfunction or damage and
which are obsolete. – No longer manufactured
Computer programs and video games distributed
in formats that have become obsolete and which
require the original media or hardware as a
condition of access.
Exemptions to the DMCA
Literary works distributed in ebook format when all
existing ebook editions of the work
(including digital text editions made available by
authorized entities) contain access controls that
prevent the enabling of the ebook's read-aloud
function andthat prevent the enabling of screen
readers to render the text into a “specialized
format.“
Ebooks for the Blind
Exemptions: 2006 - 2009
During the next three years, the prohibition
against circumvention of technological
measures that effectively control access to
copyrighted works shall not apply to persons
who engage in noninfringing uses of six classes
of copyrighted works.
Exempt Classes
Audiovisual works included in the educational
library of a college or university’s film or media
studies department, when circumvention is
accomplished for the purpose of making
compilations of portions of those works for
educational use in the classroom by media
studies or film professors.
Exemption
Sound recordings, and audiovisual works
associated with those sound recordings,
distributed in compact disc format and protected
by technological protection measures that
control access to lawfully purchased works and
create or exploit security flaws or vulnerabilities
that compromise the security of personal
computers, when circumvention is
accomplished solely for the purpose of good
faith testing, investigating, or correcting such
security flaws or vulnerabilities.
Questions?