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22 After the Ninth Circuit decision, the district court issued a more limited injunction which will require Napster to filter out infringing files from its system. Since then Napster has repeatedly tried and failed to meet the district court
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Protecting your Intellectual Property Rights in Cyberspace

How do you protect information that you post on the Internet? How do you ensure that a competing business does not take your work from the Internet and misuse it for its own commercial gain? If you are concerned about the answers to such questions, this article is a must read for you.

In 1998, the United States Congress passed the Digital Millenium Copyright Act ("DMCA" or the "Act"). Pub.L.No. 105-304, 112 Stat. 2860 (October 28, 1998). That Act deals with a variety of issues. This article focuses on frequently asked questions concerning the sections of the DMCA which were enacted to protect information posted on the Internet.

Q:  What types of works are protected by the Digital Millenium Copyright Act?

A:
 The definition of the works that are entitled to copyright protection is found in the Copyright Act of 1976. Act of Oct. 19, 1976, Pub. L. 94-553, 90 Stat. 2541; 17 U.S.C. § 101 et seq. Pursuant to that act, copyright protection extends to original works of authorship fixed in any tangible medium of expression. What does that mean? It means you have to be an author of an original literary, artistic, musical, dramatic, pictorial or other type of original work which is fixed and is able to be communicated. 17 U.S.C. § 101 et seq. For example, the article that you are currently reading is a work that is protected by the Copyright Act of 1976 -- this article is an original work (I wrote the article), it is fixed (by written words), and it is able to be communicated (you are reading the article). In general, it is relatively easy to satisfy the definition of a copyrighted work.

If a work is protected by the Copyright Act of 1976, it may be subject to the further protections under the Digital Millenium Copyright Act, 17 U.S.C. §§ 1201-1204. Essentially, the Digital Millenium Copyright Act adds a new chapter to the Copyright Act of 1976. Thus, the definition of a protected work found in the Copyright Act of 1976 (17 U.S.C. §101) also applies to the Digital Millenium Copyright Act.

Q:  If I plan to post my work on my Internet site, what can the Digital Millennium Copyright Act do for me (to protect that work)?

A:
 Once you have determined that your work is entitled to copyright protection, certain provisions of the DMCA may provide new protections for that work on the Internet.

First, 17 U.S.C. § 1201 encourages copyright owners to use technology to protect copyrighted works on their Internet site (the Act refers to this technology as "technological measures"). "Technological measures" fall into two categories -- measures which (1) prevent access to your work or (2) prevent copying of your work. The following example illustrates how to use this portion of the DMCA to prevent a competitor from misusing your work:

You decide to post a new short story that you wrote on your Internet site. An individual visits your Internet site and sees the title, "Amazing Short Story." That person wants to read the story so he or she clicks on the title to view the full text of the story. Prior to accessing the full text of the story, the individual is presented with a clickwrap contract and has to obtain a password to view the story. The individual decides not to agree to the clickwrap contract and instead uses a device that bypasses your password system. Once the individual reads the story, he or she decides to copy it and sell it for a profit. The individual does all of the above without your permission. The individual referenced above has just improperly circumvented a "technological measure" (your password system) to gain access to your short story which is an original work (a copyrighted work), and that individual has, therefore, violated Section 1201 of the DMCA. Thus, you would have a basis for suing that individual or at a minimum, for sending a demand letter requiring the individual to stop using (reselling) your short story. This is one example of how to use Section 1201 of the DMCA to protect your work on the Internet.

Second, 17 U.S.C. § 1202 is another provision of the DMCA; this provision protects the integrity of copyright management information (CMI). The technical definition of CMI is found in 17 U.S.C. § 1202(c). Simply put, CMI is the line on a copyrighted work indicating who owns that work. You can see an example of CMI by looking at the bottom of this article where it states, "Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C." That notation is the CMI for this article. Based on the CMI, Section 1202 provides two new ways to prevent a competitor from taking a protected work from your Internet site; the following example illustrates one way to use this provision of the DMCA:

You go onto the Internet and are reading my article on the Ubiquity site. After you read it, you copy my article verbatim and decide to resell it to make money. Before you sell it, you remove the copyright notice at the bottom, "Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C." Once you remove this notice, you put on the article your own CMI as follows: "Copyright © 2000 by Internet Pirate, Inc." Finally, you post the article with your new Internet Bandit, Inc. CMI on your Internet site and make a profit by distributing the article in a variety of other ways. You do not ask my permission to do any of the above. In this example, you would have just violated 17 U.S.C. § 1202 in two ways: (1) by removing my CMI from this article ("Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C.") and (2) by putting your own false CMI on the article ("Copyright © 2000 by Internet Bandit, Inc.") Thus, you would be subject to a lawsuit based on either of these violations. At a minimum, I could send a demand letter to you requiring you to stop using (reselling) my article. This is another example of one way to use Section 1202 of the DMCA to protect a work posted on the Internet.

Q:  What if an individual violates 17 U.S.C. §§ 1201, 1202 of the DMCA? What are my remedies?

A:
  If an individual violates Sections 1201 or 1202 of the DMCA and you are injured by these violations, you may file a lawsuit based on these violations. The DMCA provides a wide range of civil penalties that you may request from the court in a lawsuit as follows:

temporary and permanent injunctions; impounding of any device or product that was involved in a violation; statutory or actual damages; costs; reasonable attorneys' fees if you prevail in the lawsuit; and destruction of any device involved in the violation of the DMCA. 17 U.S.C. § 1203.

Additionally, if your competitor is violating the DMCA on a large scale and a government entity decides to pursue that violator, the Act provides for criminal penalties as well.

17 U.S.C. § 1204.

The government may request criminal penalties as follows:

(1) a fine of not more than $500,000 or imprisonment for not more than 5 years, or both, for the first offense; and
(2) a fine of not more than $1,000,000 or imprisonment for not more than 10 years, or both, for any subsequent offense.

In conclusion, by designing your Internet site to take full advantage of the protections of the Digital Millennium Copyright Act, you are more likely to be able to protect copyrighted works that you post on your Internet site. Such protections are vital to protect your intellectual property rights in cyberspace.



Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C. Ms. Gibbs (jgibbs@akl.com) is an attorney in the technology practice group at Altman, Kritzer & Levick, P.C. , an Atlanta, Georgia based law firm with a satellite office in Chicago, Illinois. She practices in the areas of technology litigation and general commercial litigation.

COMMENTS



HECN Digital Millennium Copyright Act Policy 1. Introduction

Title II of the Digital Millennium Copyright Act (“DMCA”) of 1998 limits the liability of online service providers, such as the North Dakota University System (“NDUS”) and the Higher Education Computer Network (“HECN”) for certain copyright infringement liability if various procedures are followed. This policy is intended to take advantage of the liability protections in the DMCA.The NDUS and its member institutions respect the rights of holders of copyrights, their agents and representatives and will implement appropriate policies and procedures to support these rights without infringing on the legal use, by individuals, of those materials. Legal use can include, but is not limited to, ownership, license or permission, and fair use under the Federal Copyright Act. Employees and students need to be aware of the rights of copyright owners. Information on copyright law and these rights can be found in a number of places, but general information particularly can be found by going to the following sites:

http://www.utsystem.edu/ogc/intellectualproperty/offsite.htm; http://www.lcweb.loc.gov/copyright/

Users who are found to intentionally or repeatedly violate the copyright rights of others may be denied access to all NDUS/HECN/institutional computing facilities. All instances of reported copyright violations will be reported to the individual’s institution for possible additional disciplinary actions.

2. Designated Agent

The Designated Agent for complaints under the DMCA is Brad Miller, North Dakota University System IT Security, 4349 James Ray Drive Stop 7131, Grand Forks, ND 58202, copyright.abuse@, 701-777-3587. Complaints made to the Designated Agent will be communicated to the appropriate host institution under the NDUS. In North Dakota, the NDUS is represented by the HECN for computing issues for all the institutions.

3. Complaint Notice Procedures for Copyright Owners

A notice of alleged copyright infringement to the Designated Agent must have the following:

(1) A physical or digital signature of the owner of an exclusive copyright right or the owner’s authorized agent.

(2) A description of the works claimed to be infringed.

(3) A description of the allegedly infringing works or site sufficient to enable the Designated Agent to find them.

(4) Sufficient information to enable the Designated Agent to contact the complaining party.

(5) A statement that the complaining party believes in good faith that the use of the material is not authorized by the copyright owner, the owner’s agent, or the Copyright Act.

(6) A statement that the information provided by the complaining party in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner of one or more of the exclusive copyright rights.

4. Alleged Infringing Site Take Down Procedures

When properly notified of the potential copyright infringement, the Designated Agent will make a reasonable effort to contact the site or page owner of the materials in question. There will be an attempt to secure the voluntary take down of the work, but, if not, then the HECN will immediately disable access to the work unless it is immediately determined that the work is lawful under the copyright law. The owner of the site or page of the alleged infringing material may exercise their counter notice procedure rights set forth below.

5. Counter Notice Procedures

After voluntary take down or if the site is involuntarily disabled, the University can proceed to counter notification on its behalf or on behalf of its employees or students or the owner of the site may provide counter notification to the Designated Agent. Counter notices can claim only that either the copyright owner is mistaken and that the work is lawfully posted or that the work has been misidentified. A site owner may also assert that use of another’s work is fair use, which falls under the provision that the copyright owner is mistaken in characterizing the work as infringing. Various university officials may be consulted in arriving at a fair use determination.Counter notices to the Designated Agent must contain the following:

(1) A physical or digital signature of the site or page owner.

(2) A description of the materials removed and its location before it was removed.

(3) A statement that the owner believes in good faith that the material was removed by mistake or that the work is not infringing or that it was misidentified.

(4) The owner’s name, address and phone number and his or her consent to jurisdiction of the federal district court with proper jurisdiction for any court actions arising from the infringement.

(5) A statement that the owner will accept service of process from the complaining party.

Access to the materials in question will be restored within 10 to 14 business days after the date the Designated Agent receives the counter notice unless the Designated Agent first receives a notice from the complaining party that he or she has filed an action seeking a court order to restrain the page owner.

The Designated Agent will promptly send a copy of any substantially conforming counter notice to the complaining party indicating that the site will be restored in the 10 to 14 business days unless the Designated Agent receives a notice of court action.

6. Reservation of Rights

By adopting this policy and taking advantage of the liability protection provisions of the DMCA, the HECN, the NDUS or its member institutions, or the State of North Dakota do not waive any sovereign immunity or immunity under the Eleventh Amendment to the United States Constitution.

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