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DMCA: The Law, Policy and Democracy

What is the DMCA?

  • Lobbied for by the entertainment industry, passed by Congress and signed into law by President Clinton in 1998
  • Amends the Copyright Law of the United States, Title 17 of the United States Code, passed in 1976
  • Brings "digital" component to copyright law
  • But how, at whose benefit, or expense?

The History of Copyright

  • Printing Press (western) 15th century
    • Technology changes society: who controls it?
      • Protestant Reformation
      • Capitalism?
  • Stationer's Company 1557
    • "Exclusive rights"
    • Publishers
  • Statute of Anne 1607
    • Fourteen plus fourteen
    • Artists

Anglo-American Copyright Law

  • Constitutional Convention
    • Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain)
    • Jefferson: fear of monopolies caused him to winnow author's/publisher's protection (i.e. no exclusive rights, and very limited years)
    • Madison: copyright not property, but policy, balancing incentive with learning and progress.
  • Article I, section 8:
    • Congress shall have the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Copyright Law of 1790

  • Exclusive right
    • From Stationers...
      • Still with us...
  • Fourteen years, renewable once
    • From Statute of Anne
      • Now for individual 70 years plus life of author
  • Registration required
    • Policy, not property
      • Not now, except for damages
  • But nota bene the scope: books, maps...
    • Specific
      • Not now, general: "original work in a tangible medium"

The Digital Component

  • Law is out of balance: content, copies and terms.
  • Internet placed the expansion of copyright law in a meaningful light for society at large
    • Digitization
    • Personal computers
    • Networking services
  • Copyright is the core battle for control of the Internet
    • "I want to talk to the president..."

DMCA

  • Major provisions:
    • Chapter 12: anti-circumvention
    • Amendments to chapter 5, copyright infringement and Remedies
      • Conduit 512(a)
      • Notice and take down 512(C)(3)
      • Safe harbor for faculty and students 512(d)
      • Subpoena for user identity 512(h)
      • Repeat offenders 512(i)
      • Nothing construedŠrequiring monitoring of system or seeking facts... 512(m)

DMCA and Higher Education

  • Combination of factors:
    • Higher education lead the development of Internet communications
      • "Big pipes"
    • File share program technology
      • "Fastest feed"
      • Automatic "sharing"
    • Demographic population
      • Youth, entertainment and personal identity
      • Inflated cost of CDs v. few resources

File-Sharing and Higher Education's Choice of Law

  • For conduit services, campuses can choose to ignore notices and bank on defense of 512(a)
  • If it is in a web site hosted on campus-owned computer, better to go to notice and take down 512 (C)(3)
    • "expeditious" as key word...
  • If faculty or graduate student, with conditions, a "safe harbor..." 512(e)
    • In course of employment
    • No "instructional materials..."
    • In three-year period not more than two notices by such faculty member or graduate student

What has Cornell Done?

  • Chosen as a matter of policy to deploy a notice and take down procedure for all notices, even though conduit services may provide necessary liability

What do the Patriot Act and the DMCA have in common?

  • Subpoena Power
    • Interdiction provisions of draft Patriot Act providing immunity for content holders...
    • Lower bar for law enforcement to obtain information, especially conversational detail of data communications
    • Mirrors the subpoena power of the DMCA
      • No judge, just a clerk
      • Acquire identity

RIAA v. Verizon Issues

  • DMCA 512(h) language:
    • (4)Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.
    • (5) Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in (c)(3)(A), the proposed subpoena is in proper form, the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

RIAA v. Verizon

  • Verizon's Defense:
    • Right to read
    • Right privacy
    • Due process rights
  • D.C. Circuit Court of Appeals found for RIAA
    • Verizon has turned over the identity of five customers

Subpoenas to Higher Education

  • First ones issued in July of 2003
  • Most campuses complied with initial subpoena
  • MIT's defense:
    • FRCP jurisdiction
    • Family Education and Rights Privacy Act
    • All corrected and negotiated
    • MIT has released the names

How to Address Subpoena

  • First
    • Forward to legal counsel
    • Who will review for proper service and legal fitness
  • Second
    • If legal counsel asks IT to resolve for identity, comply
  • Third
    • Legal counsel should inform user

If the identity is a student...

  • Fourth
    • Legal counsel should inform the student, per FERPA
    • Cornell's UC "the university has never fought student's legal battles for them..."
    • Keep a record, per FERPA
  • Assess your DMCA compliance procedures and copyright education programming

University Policy

  • Responsible Use of Electronic Communications
    • VIOLATIONS INVOLVING ILLEGAL, PROPIETARY, OR DAMAGING MATERIAL
    • Violation C1. Electronically distributing or posting copyrighted material in violation of license restrictions or other contractual agreements;
    • OR
    • C2. Launching a computer worm, virus, or other rogue program;
    • OR
    • C3. Downloading illegal, proprietary, or damaging material to a university computer;
    • OR
    • C4. Transporting illegal, proprietary, or damaging material across Cornell's networks
    • Who Files Complaint Anyone who has evidence of such activities occurring or about to occur, and involving Cornell's computer and network systems
    • Who Receives Complaint Office of Information Technologies
    • Appropriate Action if Violation is Reported Commensurate with the degree of urgency and potential damage to the institution, take pre- preemptive steps - preferably with the approval of your college/unit policy officer - including ensuring the preservation of evidence. Contact the Office of Information Technologies for further guidance or assistance.
    • Clarification regarding C1: Responsible Use policy and procedures govern incidents involving the illegal distribution of copyrighted material - as transported through Cornell's networks or posted to Cornell's computers - by electronic means. The possession of misappropriated copyrighted material by a member of the Cornell community violates the Campus Code of Conduct, the Code of Academic Integrity and the university's policy on the Abuse of Computers and Network Systems.

Reader-Friendly Interpretation of University Policy

  • Rights and Responsibilities
    • http://www.cit.cornell.edu/computer/responsible-use/
    • Copyright infringement
      Almost all forms of original expression that are fixed in a tangible medium are subject to copyright protection, even if no formal copyright notice is attached. Written text (including e-mail messages, news posts, and web pages), recorded sound, digital images, and computer software are some examples of works that can be copyrighted. Unless otherwise specified by contract, the employer generally holds the copyright for work done by an employee in the course of employment.

      Copyright holders have many rights, including the right to reproduce, adapt, distribute, display, and perform their work. Reproducing, displaying or distributing copyrighted material without permission infringes on the copyright holder's rights. However, "fair use" applies in some cases. If a small amount of the work is used in a non-commercial situation and does not economically impact the copyright holder it may be considered fair use. For example, quoting some passages from a book in a report for a class assignment would be considered fair use. Linking to another web page from your web page is not usually considered infringement. However, copying some of the contents of another web page into yours or use of video clips without permission would likely be infringement. See Guidelines for Publishing Web Pages at Cornell University for details. For lots more information, check out Cornell Law School's Legal Information Institute or Stanford's Copyright & Fair Use.

What does Cornell do?

Conclusion

  • What is the relationship between copyright, democracy and higher education?
    • Policy not property
    • Public domain
    • Informed citizenry
    • Free speech
    • Free inquiry
    • Open society
December 12, 2003