language: Deutsch   Français   italiano   Español   Português   日本語   russian   arabic   norwegian   swedish   danish   Nederlands   finland   ireland   English  

Yammer DMCA | Digital Millennium Copyright Act us digital millennium copyright act 1998

DMCA Policy

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Yammer’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). Yammer encourages you to submit a claim of copyright infringement by using our online process .

For your complaint to be valid under the DMCA, you must provide the following information in writing:

An electronic or physical signature of a person authorized to act on behalf of the copyright owner; Identification of the copyrighted work that you claim has been infringed; Identification of the material that is claimed to be infringing and where it is located on the Service; Information reasonably sufficient to permit Yammer to contact you, such as your address, telephone number, and, e-mail address; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and A statement, made under penalty of perjury, that the above information kukaewxo. moncler mens acorus jacket blackis accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Name: Attn: K. Carlson Address: One Microsoft Way, Redmond, WA 98052 Phone: (425) 703-5529 Fax: (425) 936-7329 Email:


Please note that this procedure is exclusively for notifying Yammer and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Yammer’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Yammer has adopted a policy of terminating, in appropriate circumstances and at Yammer’s sole discretion, members who are deemed to be repeat infringers. Yammer may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

us digital millennium copyright act 1998

moncler mens wool hat
moncler usa stores
complaint letter writing
moncler womens jackets
moncler baby snowsuit uk ” Id.

Cases interpreting the “knowledge disqualifier” include Perfect 10 v. CCBill , 488 F.3d 1102, 1114 (9th Cir. 2007) (noncompliant notices do not count toward knowledge, use of “illegal” or “stolen” in domain name does not create red flag knowledge for hosting service); Io Group v. Veoh Networks , 586 F.Supp.2d 1132, 1148 (N.D. Cal. 2008) (“[A]pparent knowledge requires evidence that a service provider turned a blind eye to ‘red flags’ of obvious infringement.”); Corbis v. Amazon , 351 F. Supp. 2d 1090, 1108-09 (W.D. Wash. 2004) (neither general knowledge of infringement on the site nor third party notices are not enough to constitute a “red flag”); Hendrickson v. Amazon , 298 F. Supp. 2d 914, 917 (C.D. Cal. 2003) (Amazon lacked prospective knowledge of infringing DVD sales, even after rights holder informed it that the title in question had never been released on DVD); Hendrickson v. eBay , 165 F. Supp. 2d 1082, 1093 (C.D. Cal. 2001).

Control + Direct Financial Benefit

A service provider will be disqualified from the (c) and (d) safe harbors if it “receive[s] a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” 17 U.S.C. § 512(c)(1)(B); § 512(d)(2)).

The Senate report explains that:

[i]n determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one. In general, a service provider conducting a legitimate business would not be considered to receive a ‘financial benefit directly attributable to the infringing activity’ where the infringer makes the same kind of payment as non-infringing users of the provider’s service. Thus, receiving a one-time set-up fee and flat periodic payments for service from a person engaging in infringing activities would not constitute receiving a ‘financial benefit directly attributable to the infringing activity.’ Nor is subparagraph (B) intended to cover fees based on the length of the message (per number of bytes, for example) or by connect time. It would however, include any such fees where the value of the service lies in providing access to infringing material. Senate Report, 44.

Several courts have held that the mere ability to remove or block access to materials, or to exclude users, is not enough to constitute “right and ability to control” within the meaning of the DMCA safe harbors. See Io Group v. Veoh Networks , 586 F.Supp.2d 1132, 1151 (N.D. Cal. 2008) (“[T]he plain language of section 512(c) indicates that the pertinent inquiry is not whether Veoh has the right and ability to control its system, but rather, whether it has the right and ability to control the infringing activity.”) (emphasis in original); Corbis v. Amazon , 351 F. Supp. 2d 1090, 1110 (W.D. Wash. 2004); Perfect 10 v. CCBill , 340 F. Supp. 2d 1077, 1104 (C.D. Cal. 2004); Perfect 10 v. Cybernet Ventures , 213 F. Supp. 2d 1146, 1181-82 (C.D. Cal. 2002).

One court has suggested that the “financial benefit” prong “should be interpreted consistent with the similarly-worded common law standard for vicarious copyright liability.” See Perfect 10 v. CCBill , 488 F.3d 1102, 1117 (9th Cir. 2007); see also Io Group v. Veoh Networks , 586 F.Supp.2d 1132, 1150 (N.D. Cal. 2008) (following CCBill ). This interpretation is problematic to the extent it may render the safe harbors a dead letter as applied to vicarious liability claims, which is at odds with legislative history that indicates that the safe harbors were meant to reach those claims. See Senate Report, 40 (safe harbors bar monetary damages for “direct, vicarious, or contributory infringement”).

Steps to Take upon Notice of Infringement

The protection from liability available under Sections 512(c) and (d) of the DMCA applies only if the service provider responds expeditiously to remove or disable access to material in accordance with the DMCA’s notice and takedown provisions. The DMCA shields the service provider from liability upon good faith removal of allegedly infringing material in response to a notice received under the DMCA. The service provider must also respond to any counter notifications received and possibly replace the removed material. Therefore, a service provider should take and document the following steps upon receipt by a designated agent of a proper notice of alleged infringement:

Verify the Notice. Proper notice must substantially comply with the requirements of the DMCA. 17 U.S.C. § 512(c)(3). The notice must: (1) contain the physical or electronic signature of claimant; (2) identify the allegedly infringing material sufficiently to permit its removal or limit access; (3) provide information sufficient to contact the party providing the notice; (4) contain a statement that the complaining party has a good faith belief that use of the material is not authorized; and (5) contain a statement that the information in the notice is accurate and, under penalty of perjury, that either the owner or the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Promptly Remove the Material. Upon receipt of a proper notice, promptly remove or disable access to the material in question. Notify the Person Whose Material Was Removed. Take reasonable steps to promptly notify the affected user that the material has been removed or access to it has been disabled. Notify Complaining Party Upon Receipt of Counter Notification. Upon receipt of a “counter notification” from the affected user, promptly provide the complaining party with a copy of the counter notification, and inform that person that access to the removed material will be restored in 10 business days. A “counter notification” must: (1) contain either the physical or electronic signature of the user; (2) identify the material that has been removed or to which access has been disabled and the location at which such material appeared before its removal or disabling; (3) contain a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and (4) contain the user’s name, address and telephone number, and a statement that the user consents to the jurisdiction of the federal district court for the jurisdiction where the user is located. 17 U.S.C. § 512(g)(3). Replace Material Unless Complaining Party Proceeds with Infringement Action. Replace the removed material or re-enable access to it in not less than 10 nor more than 14 business days following receipt of the counter notice, unless the designated agent first receives notice from the person who submitted the original notification that that person has filed an action seeking a court order to restrain the infringing activity relating to the material on the service provider’s system. DMCA Misuse

Section 512(f) of the DMCA creates a cause of action for a service provider or an end-user against “[a]ny person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification.” Those injured by misrepresentations in DMCA takedown notices or counter-notices are entitled to bring suit and recover actual damages, as well as costs and attorney’s fees. 17 U.S.C § 512(f).

“‘Knowingly’ means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.” Online Policy Group v. Diebold, Inc. , 337 F.Supp.2d 1195, 1204 (N.D.Cal. 2004) (finding misuse when DMCA notice targeted a clear fair use).

The Ninth Circuit has held that the “good faith” requirement in sending DMCA takedown notices “imposes a subjective good faith requirement upon copyright owners.” Rossi v. Motion Picture Ass'n of America , 391 F.3d 1000, 1004 (9th Cir. 2004) (interpreting “good faith” in § 512(c)(3)(A)(v)). “A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.” Id. at 1005. This standard may prove problematic insofar as it appears to reward unreasonable mistakes on the part of copyright owners—the more unreasonable the person sending the takedown, seemingly the more leeway he would enjoy in sending takedowns. This seems at odds with Congress’ purpose in enacting § 512(f).

"'Material' means that the misrepresentation affected the ISP's response to a DMCA letter." Id . See also Rossi v. Motion Picture Ass'n of America , 391 F.3d 1000 (9th Cir.2004); Dudnikov v. MGA Entertainment, Inc. , 410 F.Supp.2d 1010 (D. Colo. 2005) ('MGA was required to show that it had a sufficient basis to form the required good faith belief that the Plaintiffs’ auction infringed on its rights, and that its actions therefore complied with the notice and takedown requirements under the DMCA.').

“[I]n order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.” Lenz v. Universal Music Corp. , 572 F.Supp.2d 1150, 1154-55 (N.D. Cal. 2008).

Preliminary Injunctions

In Novotny v. Chapman , 2006 WL 2335598 (W.D.N.C. 2006) the Court denied a motion for preliminary injunction to stop improper notices, finding "injury is not likely to reoccur since the plaintiffs neither are posting the videos-at-issue on their website, nor have they cited any interest in re-posting these videos before the underlying legal issues are resolved."

In Biosafe-One, Inc. v. Hawks , 524 F.Supp.2d 452 (S.D.N.Y. 2007) the Court granted a preliminary injunction to stop improper notices. In that case defendants alleged that plaintiff violated 512(f), but had "not submitted any evidence that plaintiffs were aware or understood that they were misrepresenting the fact that defendants' website was infringing when they filed their notices." The Court held:

While defendants have not demonstrated their likely success on the merits, they have demonstrated sufficiently serious questions going to the merits to make them fair grounds for litigation and a balance of hardships tipping in their favor. To succeed on their claim, defendants need only prove plaintiffs knew defendants were not infringing when they submitted the DMCA notices. Defendants have not yet had the opportunity to fully develop this theory. Id. at 469. DMCA Subpoenas

Section 512(h) of the DMCA allows copyright holders to subpoena service providers for user identity information without filing a lawsuit.

Recording Ind. Ass'n of Am. v. Verizon Internet Servs., Inc. , 351 F.3d 1229 (D.C. Cir. 2003), cert. denied , 125 S.Ct. 309, 160 L.Ed.2d 222 (2004), cert. denied sub nom , Verizon Internet Servs., Inc. v. Recording Industry Ass'n of America, Inc. , 125 S.Ct. 347, 160 L.Ed.2d 222 (2004). The D.C. Circuit held that as a matter of statutory interpretation, the DMCA's subpoena provisions did not apply to cases in which the ISP was merely a conduit for alleged peer-to-peer file transfer. Since the RIAA could not properly send a 512(c)(3)(a) notification of claimed infringement for alleged peer-to-peer infringements, it could not use the 512(h) subpoena that depended on such notification. The court granted Verizon's motion to quash without reaching the constitutional arguments addressed below. Recording Industry Ass'n of America, Inc. v. Verizon Internet Servs., Inc. , 351 F.3d 1229 (D.C. Cir. 2003). In a consolidated case, the Court of Appeals reversed the District Court’s orders to compel Verizon to disclose the identity of subscribers. The court reasoned that under the DMCA, a subpoena may not be issued to a service provider acting as a conduit for peer-to-peer file sharing, which does not involve the storing of infringing material on its server. In re Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771 (8th Cir. 2005). The 8th Circuit followed the D.C. Circuit's lead, granting Charter's motion to quash subpoenas on the same statutory interpretation grounds. Pacific Bell Internet Servs. v. RIAA, 2003 U.S. Dist. LEXIS 21659 (N.D. Cal. 2003). Pacific Bell Internet Services challenged subpoenas issued by RIAA, MediaSentry, and Titan Media. That suit was ordered transferred to the D.C. District prior to the D.C. Circuit's decision in RIAA v. Verizon, above. In re Subpoena To University of North Carolina at Chapel Hill , 367 F.Supp.2d 945 (M.D.N.C. 2005). The court quashed the Doe subpoena, holding that 512(h) subpoenas are not applicable to 512(a) ISPs.

Denial of the RIAA's DMCA subpoenas has not stopped their efforts to identify and sue peer-to-peer infringers. The RIAA's member record labels have turned to Doe lawsuits, filing complaints against as many as 250 Does and then issuing pre-service discovery subpoenas to ISPs to obtain identifying information for the Does. Most courts have granted these discovery requests, despite arguments about the suits' jurisdictional flaws or impingement on constitutionally protected rights to anonymous speech. See EFF's RIAA v. The People .

Case Law Interpreting the DMCA Safe Harbor Provisions ALS Scan v. Remarq Communities, Inc. , 239 F.3d 619 (4th Cir. 2001) Hendrickson v. eBay , 165 F. Supp. 2d 1082 (C.D. Cal. 2001) Arista Records, Inc. v. MP3Board, Inc. , 2002 WL 1997918, 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. 2002) A & M Records, Inc. v. Napster Inc. , 239 F.3d 1004 (9th Cir. 2001). Ellison v. Robertson , 189 F. Supp. 2d 1051 (C.D. Cal. 2002); 357 F.3d 1072 (9th Cir. 2004) In Re Aimster Copyright Litig. , 252 F. Supp. 2d 634 (N.D. Ill. 2002); 334 F.3d 643 (7th Cir. 2003) Rossi v. Motion Picture Ass'n of Am. , Inc., 391 F.3d 1000 (9th Cir. 2004) CoStar Group, Inc. v. LoopNet, Inc. , 373 F.3d 544 (4th Cir. 2004) Corbis Corp. v., Inc. , 351 F. Supp. 2d 1090 (W.D. Wash. 2004) Perfect 10, Inc. v. CCBill LLC , No. 04-57143, 04-57207 (9th Cir. March 29, 2007) Anti-Circumvention and Anti-Trafficking Provisions

Sections 1201(a) and (b) of the DMCA prohibit the circumvention of technological measures that control access to or uses of copyrighted works and also prohibit trafficking in circumvention technology. Prior to its enactment, courts had permitted the sale of devices that unlocked copyright protection mechanisms on other products, so long as such products were capable of substantial noninfringing uses. See Vault Corp. v. Quaid Software , 847 F.2d 255 (5th Cir. 1988). The DMCA anti-circumvention provisions create civil remedies and provide for criminal sanctions. See 17 U.S.C. §§ 1203 , 1204 .

Scope of Circumvention Prohibition

Section 1201(a) addresses “access control” measures, prohibiting both the conduct of circumventing those measures and devices that circumvent them. Section 1201(a)(1) provides: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Section 1201(a)(2) prohibits the manufacture, importation, offering to the public, providing or otherwise trafficking in any technology, product, service, device, or component to circumvent access control measures. Thus, §1201(a) prohibits both the act of circumventing access control measures, as well as trafficking in products, services and devices that circumvent access control measures.

Section 1201(b) prohibits the manufacture, importation, offering to the public, providing or otherwise trafficking in any technology, product, service, device, or component to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under the Copyright Act, including the right to reproduce, distribute, publicly perform, or publicly display a copyrighted work. The type of technological measure addressed in §1201(b) includes copy-control measures and other measures that control uses of works that would infringe the exclusive rights of the copyright owner. The technologies protected by 1201(b) are frequently referred to as "copy controls." Unlike §1201(a), which prohibits both the act of circumvention and trafficking in devices that circumvent, §1201(b) does not prohibit the act of circumventing copy control measures. This preserves the ability to circumvent in order to make noninfringing uses of copyrighted works that are protected by copy control measures.

The following grid illustrates the relationship between these concepts:

tech controls access to work tech controls copying, distribution, public display, public performance of work Act of Circumvention 1201(a)(1) no prohibition (general copyright law applicable) Trafficking in Circumvention Tools 1201(a)(2) 1201(b) Copyright Office Triennial DMCA Rule-Making

In the House of Representatives, the DMCA was sequentially referred to the Committee on Commerce after it was reported out of the Judiciary Committee. See S. Rep. No. 105-190 (1998), and H.R. Rep. No. 105-551, pt. I (1998). The Commerce Committee was concerned that section 1201, in its original form, might undermine Congress' commitment to fair use. While acknowledging that the growth and development of the Internet has had a significant positive impact on the access of students, researchers, consumers, and the public at large to information, the Committee was concerned that “marketplace realities may someday dictate a different outcome, resulting in less access, rather than more, to copyrighted materials that are important to education, scholarship, and other socially vital endeavors.” In order to address such possible developments, the Commerce Committee proposed a modification of § 1201 which it characterized as a “‘fail-safe’ mechanism.” In the words of the Committee Report, “This mechanism would monitor developments in the marketplace for copyrighted materials, and allow the enforceability of the prohibition against the act of circumvention to be selectively waived, for limited time periods, if necessary to prevent a diminution in the availability to individual users of a particular category of copyrighted materials.”

Accordingly, Congress enacted 1201(a)(1)(C), which requires the Register of Copyrights to conduct a rulemaking proceeding and, after consulting with the Assistant Secretary for Communications and Information of the Department of Commerce, recommend to the Librarian whether he should conclude “that persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under [§ 1201(a)(1)(A)] in their ability to make noninfringing uses under [Title 17] of a particular class of copyrighted works.”

Based on these recomendations, the Librarian is empowered to grant exemptions for conduct that would otherwise violate 1201(a)(1). Such exemptions last for three year periods. “The goal of the proceeding is to assess whether the implementation of technological protection measures that effectively control access to copyrighted works is adversely affecting the ability of individual users to make lawful uses of copyrighted works .... The primary goal of the rulemaking proceeding is to assess whether the prevalence of these technological protections, with respect to particular categories of copyrighted materials, is diminishing the ability of individuals to use these works in ways that are otherwise lawful."

Unfortunately, the triennial rulemaking has been largely ineffective at protecting fair use and other noninfringing activities impaired by technical protection measures. First, the Librarian is not empowered to grant any exemptions to the trafficking prohibitions contained in 1201(a)(2) or 1201(b). Accordingly, only those who have the technological ability to circumvent are directly assisted by the exemptions. Second, the Copyright Office has imposed a heavy burden on those who seek exemptions.

The Librarian, acting on the recommendations of the Register of Copyrights, has granted the following exemptions:

2000-2003 Exemptions

1. Compilations consisting of lists of websites blocked by filtering software applications.

2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness.

2003-2006 Exemptions

1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of e-mail.

2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a "specialized format.

Additional resources regarding DMCA triennial rulemaking:

Copyright Office DMCA Rulemaking Page

Seth Finkelstein, How to Win (DMCA) Exemptions and Influence Policy

Statutory Exceptions

1201(d): Previewing by Libraries, Archives and Educational Institutions

1201(e): Law Enforcement, Intelligence and Government Activities

1201(f): Reverse Engineering

1201(g): Encryption Research

1201(h): Censorware

1201(i): Protection of Personally Identifying Information

1201(j): Security Testing

Anti-Circumvention Cases Universal City Studios v. Reimerdes , 111 F.Supp.2d 294 (S.D.N.Y. 2000), aff'd sub nom Universal City Studios, Inc. v. Corley , 273 F.3d 429 (2d Cir. 2001). Plaintiffs brought suit against defendant Eric Corley and his company, 2600 Enterprises, Inc., for posting DeCSS on the 2600 website and for providing links to other websites on which DeCSS is posted. DeCSS is a program that circumvents a DVD’s CSS encryption technology, thereby allowing users to make copies of DVDs on their computers. After trial, the district court ruled that distribution of DeCSS violated 1201(a)(2), rejected First Amendment challenges to the application of the statute, and found that simply linking to DeCSS could, in some circumstances, constitute prohibited trafficking under 1201(a)(2). The Court of Appeals affirmed. United States v. Elcomsoft Ltd. , 203 F. Supp. 2d 1111 (N.D. Cal. 2002). Elcomsoft, a Russian software company, was indicted by a federal jury for making available for purchase on the company website software that allegedly circumvented copyright protections on Adobe eBooks. The district court denied Elcomsoft’s motion to dismiss, finding that the DMCA bans all tools that circumvent technological protections, regardless of whether the tools are used to infringe copyrights or to enable fair use. The court also rejected Elcomsoft’s claims that the DMCA was too restrictive of its First Amendment rights and too vague to be enforced under the Fifth Amendment due process clause. A jury found defendants not guilty of five counts of copyright violations. RealNetworks, Inc. v. Streambox, Inc. , 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000). The court granted a preliminary injunction against Streambox with respect to its Streambox VCR and Ferret products, and denied a preliminary injunction with respect to its Ripper software. The court found that the Streambox VCR violated the DMCA by circumventing copy controls placed by RealNetworks on streamed copyrighted materials so as to allow end users to make copies of the streamed files. However, the court held that defendant’s Ripper software, which converted media files between various formats including the RealMedia format, did not violate the DMCA. The court also held that defendant’s Ferret software, which altered the appearance and operation of RealNetworks’ media player, vicariously and contributorily infringed RealNetworks’ copyright in the player and created an unlawful derivative use. Lexmark Int’l v. Static Control Components, Inc. , 387 F.3d 522 (6th Cir. 2004). Lexmark filed suit against defendants for copyright infringement and DMCA Section 1201 violations. Lexmark’s practice was to install chips in replacement toner cartridges that were necessary for the printer to function, thereby preventing Lexmark printer owners from buying replacement ink from third party manufacturers. Defendants manufactured and sold to toner manufacturers chips that allowed non-Lexmark ink cartridges to function in Lexmark printers. The district court entered a preliminary injunction against defendants. The Court of Appeals reversed. Complaint, Felten v. Recording Indus. Ass'n of Am. , No. CV-0102669 (D.N.J. Nov. 27, 2001). Princeton University computer science professor Edward Felten filed a declaratory judgment action against the Recording Industry Association of America (RIAA) after the RIAA allegedly threatened Professor Felten with a lawsuit under the anti-circumvention provisions of the DMCA if he presented his paper revealing the weaknesses in digital copy protection technologies at a conference. Felten’s declaratory relief action claimed that the DMCA violated his First Amendment rights to publish his research. The court dismissed the case for lack of an actual controversy after the RIAA promised not to sue Felten for presenting the paper. Sony Computer Entm't Am., Inc. v. GameMasters , 87 F. Supp. 2d 976 (N.D. Cal. 1999). Sony Computer Entertainment America (SCEA) sued defendant retailers of allegedly counterfeit products for violation of the DMCA, trademark infringement, and trademark counterfeiting. Defendants sold a “Game Enhancer” device that allowed consumers to configure their PlayStation console to play “import” games that SCEA did not intend to be played outside their geographical market of origin. The District Court granted SCEA’s motion for preliminary injunction, holding, inter alia , that defendants' sale of “Game Enhancer” violated the DMCA because "Game Enhancer appears to be a device whose primary function is to circumvent 'a technological measure (or a protection afforded by a technological measure) that effectively controls access to a system protected by a registered copyright....' 17 U.S.C. § 1201(a)(2)(A)." Id. at 987. 321 Studios v. Metro-Goldwyn-Mayer Studios, Inc. , 307 F.Supp.2d 1085 (N.D. Cal. 2004). Court granted partial summary judgment in favor of movies studios, finding that distribution of DVD copying software violated 1201(a)(2) and (b).

Legal Basics: What You Need to Know About the Digital Millennium Copyright Act Image credit: Shutterstock Lindsay LaVine Entrepreneur Mindset 3 Tips Navy SEALs Offer That Every Entrepreneur Can Use Zachary Pardes Business Moving Forward 8 Things Computer Engineers Can Do to Stay on Top of Their Game Peter Daisyme Design 3 Lessons Entrepreneurs Can Learn From Designers Jaime Strollo --- Shares October 2, 2013 Reader Resource

Apply now to be an Entrepreneur 360™ company. Let us tell the world your success story. Get Started »

When the Digital Millennium Copyright Act (DMCA) was created back in 1998, YouTube hadn’t yet been invented, and the words “content aggregation” weren’t commonly used. “The DMCA is a safe harbor for content aggregators,” explains Gary Adelman, a New York-based attorney with Davis Shapiro, who advises clients in a variety of copyright, trademark and entertainment matters. The DMCA protects sites where users are encouraged to upload content such as music, video clips, recipes, and other creative material, while simultaneously providing content owners with a process to remove their content from a site to which they didn’t provide permission.

This often comes up with contests, where entrants are encouraged to upload content, such as an essay or photograph/video to enter. Any business that allows the uploading of content needs to have DMCA compliance language in its Terms of Use or Privacy Policy, Adelman says.

Who controls the content is key to whether DMCA protection applies, Adelman notes. A content provider cannot upload, edit, crop or change the content in any way, or they lose the “safe harbor” protection. Adelman notes that the DMCA originally was limited to service providers like AOL but courts have recently expanded the DMCA “safe harbor” protection to include content aggregators like YouTube. 

Here’s how it works: Before a user may upload content to sites like YouTube, they must state they own or have permission from the copyright owner to upload the content. If the copyright owner did not provide permission, they (the owner) may notify YouTube by sending a Copyright Infringement Notification or a “takedown” notice.

The notice contains specific information such as: 1) The electronic or physical signature of the copyright owner. 2) Identification of the copyrighted work. 3) A description of and link to the infringing content. 4) The owner’s name and contact information. 5) A sworn statement that he/she is the owner, and did not provide permission for the content to be uploaded to the site.

Once the notice is received, the site must take down the allegedly infringing content, and notify the party that posted the content of the infringement notice. The party that uploaded the content may then file a counter-notice requesting the content be reinstated (assuming they’re the owner of the content), and the content may be restored to the site.

The counter-notice must contain: 1) The electronic or physical signature of the person that uploaded the content. 2) Identification of the content that was removed and where on the site it appeared before removal. 3) A sworn statement that the content was mistakenly removed. 4) the uploader’s contact information.

If, in the example of a contest, the website owner receives a DMCA takedown notice, takes the content in question down and notifies the person who uploaded the content of the complaint, the website owner is DMCA-compliant and the DMCA is an affirmative defense to a copyright infringement claim, Adelman explains.

“It comes down to who controls the content,” Adelman says. “If you do, the courts have been very clear that you don’t get these protections.” So, a word to the wise: if you’re planning a contest or promotion where you’re asking users to upload content, take a good look at the DMCA or, better yet, speak with a copyright attorney, as the law in this area is evolving.

Related:  Use Photos in Advertisements? Take These Steps to Avoid a Lawsuit  

Lindsay LaVine Lindsay LaVine is a Chicago-based freelance writer who has worked for NBC and CNN.

Read more Growth Strategies Legal Contests Legal Issues Legal Advice