FORM
• identify the copyrighted work you
You can download this Notice
claim was infringed (if the infringement of Claimed Copyright Infringement (and all
involves many different works at a
other forms in this book) from this book’s
single online site, you can include a
companion page on Nolo.com; see the
representative list rather than listing
appendix for the link.
each one)
• identify the online site where the
If the notice is in compliance with the
alleged infringement has occurred and rules, the ISP must decide whether to
identify specifically what material on
remove or disable access to the allegedly
the site you claim is infringing (include infringing material. The ISP does not have
copies, if possible); if a link is involved, to remove or disable access to such material; it must be identified
but, if it does so, the safe harbor will apply.
• give the name and contact information Moreover, the ISP is immune from all legal
for the person signing the notice
liability for removing or disabling access
• state that the information in the notice to the material—meaning that neither the
is accurate and that the complaining
subscriber nor user nor anyone else can sue
party “has a good-faith belief that
it for doing so. This is so even if it turns out
use of the material in the manner
that the material complained of was not
complained of is not authorized by the infringing.
copyright owner, its agent, or the law”
The law imposes no specific time limit on
• state, under penalty of perjury, that
how quickly the ISP must act. It simply says
the signer of the notice is authorized to the ISP must act “expeditiously” (quickly).
act on behalf of the copyright owner
If the ISP does remove or disable access to
of the material claimed to have been
the allegedly infringing material, it must
infringed
“promptly” notify the subscriber or user
• be signed with either a physical or
of the action. The ball then enters the
electronic signature.
subscriber’s court.
318 | THE COPYRIGHT HANDBOOK
Takedown Notice to Google and
and others to whom you sent a takedown
Other Search Engines
notice. To do this, the user must send the
You can request that Google and other
ISP a counter-notification. The counter-
search engines remove the infringing
notification must:
page from their search results by filing
• identify the allegedly infringing
DMCA Takedown Notices using the same
material and give its Internet address
procedure described above for ISPs. You can
• state, under penalty of perjury, that
send a DMCA Takedown Notice to Google
the material was removed or disabled
through the following URL after logging
by the ISP as a result of mistake or
into your Google Account: www.google.
misidentification of the material
com/webmasters/tools/dmca-notice?rd=1.
• state that the user consents to the legal
jurisdiction of the federal district court
Other Takedown Notices
in the judicial district where the user’s
address is located; or, if the user lives
You should check the infringer’s website
outside the United States, consents to
to see if it is earning ad revenue from your
jurisdiction in any federal district court
content—for example, by selling Google
where the ISP may be sued
Adwords. You can discover if the infringer
• state that the user agrees to accept
is using Adwords or Yahoo/Bing Ads at
service of legal process from the copy-
www.semrush.com, and if so, you can
right owner or other person who signed
contact those companies at:
the Notice of Claimed Copyright
• Google Adwords: https://
Infringement
support.google.com/legal/
• give the user’s name and contact
troubleshooter/1114905, and
information for the person signing the
• Bing Ads: http://advertise.bingads.
notice, and
microsoft.com/en-us/copyright-
• be signed with either a physical or
infringement.
electronic signature.
The counter-notification can be either
User’s Counter-Notification
emailed or sent by postal mail to the ISP’s
An ISP’s subscriber or user doesn’t have
designated agent.
to take the removal of the material lying
down. If the user believes that the material
is not infringing or has been mistakenly
FORM
identified, it can take action to have the
You can download this counter-
material put back by the ISP, Google,
notification (and all other forms in this book)
from this book’s companion page on Nolo.com;
see the appendix for the link.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 319
Upon receipt of a counter-notification
activity on the ISP’s system. To obtain such
satisfying the above requirements, the ISP
an injunction, you’ll have to convince the
must “promptly” send the copyright owner court that it is likely that the subscriber has or other person who sent the Notice of
committed copyright infringement.
Claimed Copyright Infringement a copy of
If you don’t want the ISP to put the
the counter-notification and inform such
material back or stop disabling access to
person that the ISP will replace the removed it, you’ll have to act quickly. Access to the material or stop disabling access to it in ten
material will have to be restored by the ISP
business days (days not counting weekends or no more than 14 business days after the
holidays).
subscriber sent it the counter-notification. It
The ISP must replace the removed
is possible, however, to obtain an injunction
material or stop disabling access to it not
very quickly. (See above for a detailed
less than ten or more than 14 business
dis cussion of injunctions in copyright
days after it received the user’s counter-
infringe ment cases.)
notification, unless the copyright owner
To file your lawsuit, you’ll have to know
brings a court action as described below.
the subscriber’s or user’s identity. The
By sending a counter-notification, the
DMCA contains a procedure allowing you
user in effect forces the copyright owner to
to subpoena the ISP and require it to give
put up or shut up. The copyright owner will you this information.
have to go to court and convince a judge
that it’s likely that a copyright infringement Use of Licenses to Prevent Infringement has occurred. If the copyright owner doesn’t
want to go to court, the ISP will have
A license gives someone permission to do
to replace the removed material or stop
something. For example, when your state
disabling access to it.
issues you a driver’s license, it gives you
permission to drive a car. Copyright owners
Copyright owner’s response
can give others permission to use their works
to counter-notification
by granting licenses. (See Chapter 10.)
If the subscriber sends the ISP a counter-
Licenses are often used in the online world.
notification, you can forget about getting
For example, the owners of com mercial
the infringing material removed or disabled
computer databases like LexisNexis limit
without having to go to court. Instead, you
access to users who sign license agree ments
will have to file a copyright infringement
and agree to pay access fees. Such agreements
lawsuit against the subscriber in federal court often attempt to regulate the way users deal and ask the court to grant you an injunction with online materials. For example, they may ordering the subscriber to stop the infringing forbid users from transferring digital copies of such material to others.
320 | THE COPYRIGHT HANDBOOK
A user doesn’t necessarily have to
typical y bar purchasers from copying,
physical y sign a license for it to be enforce-
adapting, or modifying the work. The
able. Online licensing agreements are
court held that the shrink-wrap license was
likely enforceable where access to an online
an enforceable contract. Since Zeidenberg
service, website, or electronic database is
violated the license, he was liable to ProCD
made available only after users are given the
for damages. ( ProCD v. Zeidenberg, 86 F.3d
opportunity to read the agreement. Such
1447 (7th Cir. 1996).)
licenses are likely not enforceable, however,
where the user is not al owed to read it before Technological Solutions to Infringement being given access to protected material.
Some copyright experts assert that
If copyright ceases to be an important way
license restrictions that go beyond what the
for content providers to protect their works,
copyright laws al ow may be unenforceable
it will likely be because highly effective
because the federal copyright laws preempt
technological solutions to infringement
(take precedence over) state contract laws.
will be found. This includes the use of
Under this view, for example, a license
encryption schemes—that is, translating
restriction that attempted to do away with a
digital works into unreadable gibberish
user’s fair use rights would be unenforceable. as the military does with secret messages.
However, the most significant court case Users would be able to decrypt and read
to date takes the opposite view, holding
a work only after paying a fee to the
that licenses can restrict the use even of
copyright owner.
information in the public domain. Matthew
Copyright owners are fearful that infring-
Zeidenberg bought a CD-ROM containing ers may devise means of circum venting their
business telephone listings from ProCD.
anti-infringement technological measures—
He downloaded the listings to his computer for example, devise means of “cracking”
from the CD-ROM and made them
encryption codes. The DMCA enacted by
available on the Internet, attaching a search Congress in late 1998 includes a complex
program he created himself. Zeidenberg
provision designed to prevent this. Follow-
did not commit copyright infringement,
ing is the briefest possible overview of this
because phone listings are in the public
statute:
domain. (See Chapter 6, “Adaptations and
• First, it makes it illegal for anyone
Compilations.”) However, he did violate the
to make, import, or sell devices or
terms of a shrink-wrap license agreement
services whose primary purpose is to
that came with the CD-ROM. Such license
circumvent technological measures
agreements, which are commonly included
used to prevent unauthorized access to
inside software and CD-ROM packages,
or copying of a work.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 321
• Subject to several exceptions, it makes
■■ computer programs that operate
it illegal for anyone to obtain access to a
the following types of devices, to
work by circumventing any technologi-
allow connection of a used device
cal measure (such as encryption) that
to an alternative wireless network
effectively controls access to the work.
(“unlocking”): cellphones, tablets,
• Exempt from this prohibition are non-
mobile hotspots, and wearable
profit libraries, archives, and educational
devices (e.g., smart watches)
institutions that wish to gain unauthor-
■■ computer programs that operate
ized access to works solely to make a
the following types of devices, to
good-faith determination of whether
allow the device to interoperate with
to acquire a copy. Exemptions are also
or to remove software applications
given to law enforcement, intel igence,
(“jailbreaking”): smartphones,
and other government activities; bona
tablets and other all-purpose mobile
fide encryption research; security testing;
computing devices, and smart TVs
and cases where the technological
■■ computer programs that control
measure or work it protects is capable
motorized land vehicles, including
of col ecting personal identifying
farm equipment, for purposes of
information about online users.
diagnosis, repair and modification of
• In addition, the Copyright Office
the vehicle
is allowed to enact a regulation
■■ motion pictures (including television
exempting certain classes of works
programs and videos):
from the statute’s anticircumvention
1) for educational uses by college
provisions. This regulation expires
and university faculty and
after three years, at which time the
students
Copyright Office must review it and
2) for educational uses by K-12
determine whether to extend it for
instructors and students
another three years or adopt a new
3) for educational uses in massive
regulation. The current regulation,
open online courses (MOOCs)
exempting nine classes of works, was
4) for educational uses in digital
adopted on October 28, 2015 and will
and literacy programs offered by
expire on October 28, 2018. It per
mits
libraries, museums, and other
the following activities:
nonprofits
■
■
literary works distributed
5) for multimedia e-books offering
electronically—that is, ebooks—
film analysis
for use with assistive technologies
6) for uses in documentary films, and
for people who are blind, visually
7) for uses in noncommercial videos.
impaired, or have other disabilities
322 | THE COPYRIGHT HANDBOOK
■
■
computer programs that operate
■■ computer programs that operate 3D
the following devices, for purposes
printers, to allow use of alternative
of good-faith security research: (1)
feedstock, and
devices primarily designed for use
■■ literary works consisting of
by individual consumers, including
compilations of data generated by
voting machines, (2) motorized land
implanted medical devices and
vehicles, and (3) medical devices
personal monitoring systems.
designed for implantation in patients
Penalties for violations are the same
and personal monitoring systems
as for removal of copyright management
■
■
video games for which outside
information. (See above.)
server support has been discontinued,
For a detailed understanding of this
to allow individual play by gamers
incredibly complicated statute, you’ll need
and preservation of games by
to read the law. A copy of the DMCA is
libraries, archives, and museums
available at www.copyright.gov/legislation/
(as well as necessary jailbreaking
pl105-304.pdf.
of console computercode for
l
preservation uses only)
C H A P T E R
International Copyright Protection
12
International Protection for U.S. Citizens and Nationals ...............................................324
The Berne Convention ..................................................................................................................324
GATT ..................................................................................................................................................... 326
The WIPO Treaty ..............................................................................................................................327
Protections in Countries Not Covered by Conventions .............................................327
Bringing Infringement Suits in Foreign Countries ..........................................................327
The Copyright Handbook Page 56