Transcript Legal Considerations Part II:

Legal Liability under the
Digital Millennium Copyright Act and
the
Communications Decency Act
Presented by Daliah Saper
Saper Law Offices, LLC
Overview
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Copyright Law
Defamation Law
Digital Millennium Copyright Act
Communications Decency Act
Applications of DMCA and CDA
Copyright
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What is a copyright?
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A copyright is a set of exclusive rights given to an original
author to regulate the use of a particular expression of
ideas. These rights gives the owner of the copyright the
exclusive right to make copies of the work, distribute
copies of the work to the public, prepare derivative works,
perform the work publicly, and display the work publicly.
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Basically, the copyright owner has the right to exploit his/her
own work, but those rights are unavailable to any others.
Copyright
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What are the requirements for obtaining copyright?
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Copyright protection applies to any work that is:
1) original,
2) a work of authorship, and
3) fixed in a tangible medium of expression.
What works can be copyrighted?
Literary, musical, dramatic, graphic, motion pictures and other
audiovisual works, sound recordings, and others.
 A copyright does not protect ideas or other non-expressive
elements of a work.
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Copyright
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What constitutes a copyright infringement?
A
copyright infringement is the unauthorized use of
copyrighted material in a way that violates any of the
owner’s exclusive rights, unless the alleged activity falls
within one of the statutory exceptions.
 To
prove infringement, the copyright owner must show
ownership of the allegedly infringed work and that the
alleged infringer violated one of the owner’s exclusive
rights.
Defamation
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What is defamation?
 Defamation
is the communication of a false claim or
statement of fact about another person to a third
party that harms his or her reputation.
 Two
types of defamation
 Libel,
or written defamation, including things written on
websites, blogs, and message boards
 Slander, or spoken defamation
How to Protect Yourself from Lawsuits
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Things you can control
 Don’t
use other peoples’ content without permission
 Be careful what you say online about others
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Things that are more difficult to control
 Postings
 web
by users on your:
site
 Wiki
 social
 blog
network
EEK!!
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How do I protect myself from rogue service users?
… the government’s got your back
…kind of
Digital Millennium Copyright Act
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What is the Digital Millennium Copyright Act?
 The
DMCA has a number of parts, the most important
of which is Title II, the Online Copyright Infringement
Liability Limitation Act (“OCILLA”).
 OCILLA
creates a safe harbor for online service
providers against liability for acts of infringement by
users of the service.
 Service
providers must meet various criteria in order to
qualify for protection under the DMCA.
Digital Millennium Copyright Act
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What defines a service provider under the DMCA?
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"an entity offering transmission, routing, or providing
connections for digital online communications, between or
among points specified by a user, of material of the user's
choosing, without modification to the content of the material
as sent or received" OR
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"a provider of online services or network access, or the
operator of facilities thereof.“
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Includes network services companies such as Internet service
providers (ISPs), search engines, bulletin board system
operators, and even auction web sites
Digital Millennium Copyright Act
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How does a service provider qualify for
protection?
 In
addition to informing its customers of its policies, a
service provider must follow the proper notice and
takedown procedures and also meet several other
requirements in order to qualify for exemption under
the safe harbor provisions.
Digital Millennium Copyright Act
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Example of takedown and put back procedures :
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Jane puts Artists's song on her Myspace page.
Artist, searching the Internet, finds his song on Jane’s page.
Artist’s Lawyer, sends a letter to Myspace’s designated agent including:
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Jane’s contact information
the name of the song that was copied
the address of the copied song
a statement that he has a good faith belief that the material is not legal
a statement that, under penalty of perjury, Lawyer is authorized to act
for the copyright holder
Lawyer’s signature
Myspace removes song.
Myspace tells User that they have removed the song.
Digital Millennium Copyright Act
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Example continued
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User can now send a counter-notice to Myspace, if she feels the song
was removed unfairly. The notice includes
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contact information
identification of the removed song
a statement under penalty of perjury that User has a good faith belief
the material was mistakenly taken down
a statement consenting to the jurisdiction of User’s local US Federal
District Court, or, if outside the US, to a US Federal District Court in any
jurisdiction in which Myspace is found.
User’s signature
Myspace then waits 10-14 business days for Artist to file a lawsuit.
If Artist does not file a lawsuit, then Myspace may put the song back up.
Google’s has a great DMCA notice
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http://www.google.com/dmca.html
“It is our policy to respond to clear notices of alleged
copyright infringement. This page describes the information
that should be present in these notices. It is designed to make
submitting notices of alleged infringement to Google as
straightforward as possible while reducing the number of
notices that we receive that are fraudulent or difficult to
understand or verify. The form of notice specified below is
consistent with the form suggested by the United States Digital
Millennium Copyright Act (the text of which can be found at the
U.S. Copyright Office Web Site, http://www.copyright.gov)
but we will respond to notices of this form from other
jurisdictions as well.”
Second Life has a funny one
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http://secondlife.com/corporate/dmca.php
They have to emphasize that the DMCA notice takes
place in “real life”
Chilling Effects Site
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http://www.chillingeffects.org/dmca512/notice.cgi?
NoticeID=861
Great Explanation of the DMCA
DMCA in the Real World
A Case to watch:
Viacom International, Inc. et al v. Youtube, Inc. et al
 Viacom sues Youtube (owned by Google) over copyright
infringement for $1 billion
 YouTube, due to the DMCA safe harbor provisions, argues it
should not be liable for the infringing videos shared by its users.
 Case is still pending
Defamation and other Claims
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The DMCA only applies to Copyrighted works.
A different law: the Communications Decency Act ,
applies to statements and actions by third party
users of your site, blog, wiki, etc.
Communications Decency Act
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Provides immunity from liability for providers and users of an
"interactive computer service" who publish information provided by
others
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider.
Protection for service providers against liability for users’
defamatory statements
Enhances free speech by making it unnecessary for ISPs and other
service providers to unduly restrict customers' actions for fear of
being found legally liable for customers' conduct.
Communications Decency Act
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In analyzing the availability of the immunity offered by this
provision, courts generally apply a three-prong test. A
defendant must satisfy each of the three prongs to gain the
benefit of the immunity:
1.
The defendant must be a "provider or user" of an "interactive
computer service.“
2.
The cause of action asserted by the plaintiff must "treat" the
defendant "as the publisher or speaker" of the harmful
information at issue.
3.
The information must be "provided by another information
content provider," i.e., the defendant must not be the
"information content provider" of the harmful information at
issue.
CDA in the Real World
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Wiki
A
wiki is a collection of web pages designed to enable
anyone who accesses it to contribute or modify content.
 The provider of a Wiki page usually cannot be held
accountable for defamatory statements posted to the
page by a user
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Facebook, Twitter, Ning, etc.
 Social
networking sites are entitled to immunity from
liability brought about by users’ libel statements.
CDA in the Real World
This act extends to Defamation claims--and more. Examples:
 Chicago Lawyers' Committee For Civil Rights Under Law, Inc.
v. Craigslist, Inc.
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Doe v. MySpace
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CDA immunity applied to Craigslist on Fair Housing Act claims
based on discrimination in postings
Social networking site immune from negligence and gross
negligence liability for failing to institute safety measures to
prevent sexual assaults of minors and failure to institute policies
relating to age verification
Gentry v. eBay, Inc.
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CDA immunity applied to eBay for claims based on forged
autograph sports items purchased
Questions?
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Contact Info (www.saperlaw.com) :