Major ISPs and Content Providers Band Together for New Copyright Alert System

July 10, 2011

A group of major Internet service providers (ISPs), content provider organizations and two leading industry associations just announced last week the establishment of the Center for Copyright Information to better educate the public about appropriate online copyright usage and a soon-to-be-implemented uniform Copyright Alert System in hopes of deterring unauthorized Internet use of copyrighted materials.  Included as signatories to the Memorandum of Understanding (the Copyright Alerts MOU), which outlines both initiatives, are the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), Disney Studios, Sony Pictures, Warner Bros., UMG, EMI, AT&T, Verizon, Comcast and Time Warner Cable.

Unlawful sharing, downloads and use of copyrighted materials over the Internet has been the bane of many creators of copyrighted works, particularly the major record labels and movie studios.  The music industry has had some success in pursuing infringement through lawsuits against significant peer-to-peer site operators (e.g., Grokster and LimeWire).  It has also experienced somewhat mixed results and lots of negative PR via aggressive lawsuits by RIAA against individual users.    For their part, ISPs have been burdened with assisting, at least indirectly, in related policing efforts by virtue of administering takedown policies and procedures pursuant to Section 512 of the Digital Millenium Copyright Act (DMCA). 

So, while not abandoning altogether their current practices and rights, the signatories to the Copyright Alerts MOU  will implement a system of uniform notices that content organizations can send to participating ISPs, which will then issue a series of escalating alerts to alleged infringers that seek to halt the alleged infringing activity.  The types of alerts in ascending order are (i) an Educational Step Copyright Alert, (ii) an Acknowledgment Step Copyright Alert, (iii) a Mitigation Measure Copyright Alert Step.  For each step there may also be multiple alert notices provided to an applicable user.  Measures proposed at the Mitigation Step include a reduction in upload/download transmission speeds, a step down to a lower tier service, redirection to a landing page until the matter is resolved, and restrictions on Internet access.  There are several “warning bells” along the alert steps as well as an appeals procedure (although a user is required to pay a $35 fee to pursue an appeal). 

The tenor of the Copyrights Alert MOU and an FAQ on the Center for Copyright Information’s website makes clear that this is intended as a sort of experiment to address a problem for which a solution has long eluded a diverse group of stakeholders.  While it is too early to judge how this will work in practice, it appears to be a constructive effort worth watching.


Copyright Office Issues DMCA Exemptions

July 31, 2010

The Digital Millennium Copyright Act (DMCA) prohibits circumvention of access control devices in copyrighted works to obtain an unauthorized copy of such work.   However, the DMCA authorizes the Librarian of Congress to make a determination every three years whether certain  classes of work should be exempted from such anti-circumvention restrictions.  In furtherance of that statutory obligation, the Librarian of Congress within the past week designated six classes of work as being exempt from those restrictions.  Thus, as noted in the statement issued by the Copyright Office, “[p]ersons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.” 

The six classes, briefly summarized, are: (1) use of short portions of certain motion pictures on DVDs for criticism or comment; (2) computer programs that enable wireless telephone handsets to execute software applications for enabling interoperability; (3) computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network to connect to a wireless telecommunications network; (4) video games accessible on personal computers and protected access control measures to test, investigate or correct security; (5) computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete; and (6) literary works distributed in e-book format when all existing e-book editions of the work prevent the book’s read-aloud function or of screen readers that render the text into a specialized format.   (Items (2) and (3) have been popularly referred to as the iPhone “jailbreaking” exceptions, which would allow use on iPhones of  apps not authorized by Apple as well as connection with mobile carriers other than Apple’s designated carrier of AT&T.)

Link to Copyright Office Statement:  http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html


Veoh Case Illustrates Path to DMCA Safe Harbor

September 26, 2009

A recent decision, UMG Recordings v. Veoh Networks, No. CV 07-5744 AHM (AJWx) (N.D. Cal. Sept. 19, 2009), by a federal district court provides a good example of the tensions sought to be balanced under the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”) and the way to successfully attain the benefits of one of these safe harbors.  While the Veoh case can be viewed as but one of the many ongoing skirmishes pitting music and film industry giants against emerging video and music sharing websites, the decision serves as useful guidance for sites of all sorts that host user-generated content.   

Veoh operates a widely used video sharing website.  Not surprisingly, users sometimes post unauthorized copies of copyrighted materials, including UMG (Universal) music videos.  Veoh maintains a clear copyright policy that is readily available to its users that prohibits posting of unauthorized content and Veoh’s normal practice is to remove promptly known infringing video postings.  Veoh also employs filtering technology that automatically blocks postings of known infringing content.   Notwithstanding these measures, UMG claimed that Veoh should have known that the type of site it operated would result in the posting of infringing content, that Veoh should have employed filtering technology earlier than it did, and that Veoh failed to remove improper videos based on UMG having merely identified UMG artists by name but not specific copyrighted videos.

Enter the DMCA.  The DMCA attempts to strike a reasonable balance between the need to protect the legitimate rights of copyright holders, on the one hand, and the desire to avoid improper constraints on freedom of expression and also to allow the continued development of electronic communications platforms, on the other.  As part of that balancing act, the DMCA contains in Section 512(c) a safe harbor provision against copyright infringement claims for internet service providers and other operators of websites that store user-generated content.  The safe harbor shields an online service provider from liability if the provider:

  1. Does not have actual knowledge that the content is infringing, is not aware of facts or circumstances that would make apparent that infringing activity has occurred, or upon becoming aware of infringing content, acts promptly to remove or disable access to such content;
  2. Does not receive a direct financial benefit from infringing content where the provider also has the right and ability to control such content;
  3. Upon notification of claimed infringement, responds promptly to remove or disable such content; and
  4.  Has adopted and reasonably implemented a policy that informs users that repeat infringers will have their access to the service terminated.

The Veoh court found that, contrary to the strained contentions of UMG, Veoh easily satisfied each of the safe harbor elements.  The court noted that service providers are not required to take any particular actions just because infringing activity could be taking place and what the DMCA requires is notice of specific works claimed to be infringed not generalized assertions that all works involving a particular artist must be addressed.  Providers are also not required to adopt any particular technology, such as filtering technology, or, if they choose to do so, adhere to a timetable preferred by a complainant.  What is required is that the service provider act reasonably under the circumstances.  For all these reasons, the court held that Veoh in fact acted reasonably and granted Veoh’s motion for summary judgment against UMG.

Like the sturdy little train engine of storybook fame, Veoh has seemingly become the “little website that could,” having now scored at least three successive court victories in as many years against claims of copyright infringement.   However, operators of websites that are further below the radar screen should still take note of this case.  Even though greater attention has been garnered by the music and film industries in notable online copyright cases, the types of well thought out steps implemented by Veoh to address issues of alleged infringement are ones from which any website with contributed content can benefit.