Table of Contents:

Introduction to the online version


Preface to the printed version

Copyright Overview

Software Copyright

Digital Copyright

- Why Digital Works are Different

- A Bad Fit

- Protecting Digital Information

- What Not to Protect

- DMCA Safe Harbors

   - Notice and Takedown and Putback

   - Mere Conduits

   - Caching

   - Stored Information

   - Directories

   - Other Safe Harbor Requirements

   - Special Rules for Schools

- Protection Through Technology

- DMCA Technological Protections

   - Trafficking

   - Accessing

   - Distinction From Copyright

   - Rights Management

   - Permitted Circumventions

   - Reverse Engineering

   - Encryption Research

   - Code as Speech

   - Security Testing

Patent Overview

Software Patents

Full treatise table of contents

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Chapter 3: Copyright of Digital Information

III.B. Congress Codifies the Decisions

In 1998, Congress updated the copyright laws by passing the Digital Millennium Copyright Act (DMCA). {FN69: Pub. L. 105-304, 112 Stat. 2860} In the report that accompanied the Senate version of the bill, the Committee on the Judiciary stated the reasons why Congress needed to act:

   Due to the ease with which digital works can be copied and distributed worldwide virtually instantaneously, copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy. Legislation implementing the treaties provides this protection and creates the legal platform for launching the global digital on-line marketplace for copyrighted works. It will facilitate making available quickly and conveniently via the Internet the movies, music, software, and literary works that are the fruit of American creative genius. It will also encourage the continued growth of the existing off-line global marketplace for copyrighted works in digital format by setting strong international copyright standards.

   At the same time, without clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the speed and capacity of the Internet. In the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability. For example, service providers must make innumerable electronic copies by simply transmitting information over the Internet. Certain electronic copies are made to speed up the delivery of information to users. Other electronic copies are made in order to host World Wide Web sites. Many service providers engage in directing users to sites in response to inquiries by users or they volunteer sites that users may find attractive. Some of these sites might contain infringing material. In short, by limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand. {FN70: Sen. Rep. No. 105-190 at 8}

Content providers had pushed for a bill to better protect their copyrights in the digital world, along the lines of the recommendations of the White Paper. But there were many substantial objections from users and service providers that the White Paper proposals tipped the balance too much in favor of the content providers, since the White Paper proposed strong measures protecting the technology that prevents copying of digital information while not providing exceptions for normal and necessary copying. When the bills implementing the White Paper recommendations went nowhere after they were introduced in Congress, the Clinton Administration and the content providers worked hard for the adoption of a new treaty extending the Berne Convention to address digital works. But because that treaty required changes to the copyright act before it could be ratified, particularly in the areas of rights management information (digital copyright notices) and technological protection measures, the ball was back in Congress’s court.

Because the general acceptance of the Netcom {FN71: 907 F.Supp. 1361, 37 USPQ2d 1545 (N.D. Cal. 1995)} decision made it clear that service providers should not be the deep pockets to compensate the copyright owners when one of their users infringed a copyright, the content providers were willing to discuss a compromise. That would eventually lead to the codification of a number of safe harbors and the ratification of the WIPO Copyright Treaty.

III.B.1. The Four Safe Harbors

In the DMCA, Congress provided a series of safe harbors for network service providers. The term “safe harbor” is a nautical metaphor, indicating a place where a ship will be safe from stormy weather. But as in the case of a ship, being outside a safe harbor does not mean that you are in danger. It just means that your safety is not assured. Each DMCA safe harbor substantially limits the liability for copyright infringement. Each is separate, and if you fall within any one, your liability is limited. And even if you don’t meet the requirements of one of the safe harbors, that is not an indication that you are infringing a copyright. Other defenses, such as fair use, still remain available.

The four safe harbors provided by Congress, in the following subsections of Section 512, {FN72: 17 U.S.C. §512} are:

(a)   Transitory digital network communications

(b)   System caching

(c)   Information residing on systems or networks at the direction of users

(d)   Information location tools

Each of these safe harbors represent a particular aspect of the normal operation of the Internet that Congress wanted to protect and promote, albeit with some limitations. Each has a set of particular conditions, all of which must be met to enjoy the protection of that safe harbor. You don’t get to pick and choose from the different safe harbors to create a new one. Each safe harbor addresses a different aspect of potential copyright liability, and meeting the conditions of any one is sufficient to receive protection for the acts included in that safe harbor, even if the same act would not meet the requirements of another safe harbor.

Just because a service provider does not qualify for any of the safe harbors does not mean that it might not have a defense to a charge of copyright infringement. Subsection (l) makes it clear that the safe harbors are not intended to list all defenses, nor is conduct outside the safe harbors an indication that the service provider must be infringing.

The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense. {FN73: 17 U.S.C. §512(l)}

Even though the DMCA became law in 1998, there have been very few court cases that interpret its language. Until there are more cases, the best guidance can be found in the congressional reports that accompanied its passage.

III.B.2. Benefits of Being in the Safe Harbor

Each of the safe harbors begins the same way:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of [the particular act covered by the safe harbor].

The safe harbors don’t say that an act by a service provider is not an infringement, like the many exceptions to the exclusive rights of a copyright owner that are detailed starting with Section 107 {FN74: 17 U.S.C. §§107-122} in Chapter 1 of the Copyright Act. Instead, they go to the penalties against a service provider for any infringement. A service provider can still be found to have infringed a copyright, even within the safe harbor. Congress was concerned that it might be difficult to get an injunction against a service provider when that service provider was not an infringer.

Congress felt that it was important for a court to be able to order a service provider to help in stopping an ongoing infringement. But the scope of such an injunction is limited by subsection (j). When a service provider is acting as a “mere conduit” carrying the communications of others, and meets all the conditions of Subsection (a), {FN75: 17 U.S.C. §512(a)} a court can grant injunctions only in one or both of the following forms:

 (i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is using the provider’s service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. {FN76: 17 U.S.C. §512(j)(1)(B)}

For all the other safe harbors, the following injunctive relief is available:

(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider’s system or network.

(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. {FN77: 17 U.S.C. §512(j)(1)(A)}

Congress was concerned that injunctions not become burdensome for service providers, and it indicated a number of factors to be considered by a court when deciding whether to grant an injunction and in determining its scope:

(A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider’s system or network;

(B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement;

(C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and

(D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. {FN78: 17 U.S.C. §512(j)(2)}

Finally, Congress made it clear that injunctions were not to be granted without proper notice to a service provider, so that the service provider can determine the true nature of any alleged infringement and contest the issuance of an injunction, except under very exceptional circumstances.

Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network.

Next section: Notice and Takedown and Putback

Copyright © 2002, Lee A. Hollaar. See information regarding permitted usage.