Digital Millenium Copyright Act

Written by: Susan Neuberger Weller

The Digital Millennium Copyright Act (DMCA), signed into law October 28, 1998, added Section 512 to the US Copyright Act limiting the liability of online service providers for copyright infringement. Basically, the law exempts from liability online service providers on whose sites third-party users store, post, or otherwise place various types of infringing material if the provider had no knowledge of the infringing activity, if it expeditiously removed the infringing material once the infringement became known to it, and if the provider did not receive a direct financial benefit from the infringing activity.  In order to benefit from these “safe harbor provisions” of the DMCA, a service provider must meet all the requirements of the law. One of these requirements is that the service provider must designate an agent to receive notifications of claimed infringements. The contact information for the designated agent must be sent to the Copyright Office and must be posted on the service provider’s website in a location accessible to the public. The one page forms created for this purpose can be found on the Copyright Office website, but service providers may use their own form as long as it includes all of the required information.  Complying with this designation of agent requirement is not rocket science. However, failing to comply may set off unnecessary and expensive fireworks. Continue Reading OSPs: Are You Sure You Are Safely Within the DMCA Safe Harbor?

Written by: Susan Neuberger Weller

A federal jury in New York has found Agence France-Presse and Getty Images Inc. willful in their infringement of Daniel Morel’s copyrights in eight photographs of the 2010 Haiti earthquake, and ordered them to pay damages of $1.2 million. The court had already found AFP  liable for direct copyright infringement on summary judgment, but sent to the jury for disposition the issue of whether Getty’s affirmative defenses vitiated any liability for infringement. The jury was also asked to decide whether any infringement by either Defendant was willful. In addition, the jury awarded Morel $20,000 after finding that the two Defendants also violated the Digital Millennium Copyright Act.

Continue Reading Willful Infringement of Copyright in Haitian Earthquake Photographs Cost AFP and Getty $1.2 Million

Written by: Joseph M. DiCioccio

The United States Intellectual Property Enforcement Coordinator Victoria Espinel recently blogged about a new effort to combat online piracy of intellectual property.  The broad-based effort attempts to leverage the participation of several large internet/publishing companies (Google, Yahoo, Microsoft, AOL and Condé Nast), advertising networks (24/7 Media, Adtegrity) and the Interactive Advertising Bureau.  The parties have agreed to voluntarily adopt a set of best practices to remove advertising from websites that are primarily engaged in copyright piracy (movies, video games, music, books, etc.) or selling counterfeit goods.

Continue Reading Google, Yahoo, and Ad Networks Agrees to Set of Best Practices to Combat Online Piracy

Written by Susan Neuberger Weller

In a number of recent cases, individual photographers have successfully sued third parties for unauthorized reproduction and use of photographs, particularly those from stock photography sources. Courts have found third party liability for willful and innocent copyright infringement for the use of individual photographs and have awarded damages to copyright holders based on such conduct. Generally, professional photographers offer their photographs for use by third parties through professional stock photography agencies that negotiate licenses for use of the photos on behalf of the photographer. Continue Reading Just Because You Can Copy It Does Not Mean That You May Copy It

Written by Susan Neuberger Weller

On Friday, August 10, 2012, Google announced that it was changing its search algorithms so that websites with high numbers of valid copyright infringement removal notices would appear much lower in the search results. This announcement was greeted with strong approval by many online copyright content owners who have for years tried various methods of pressuring Google and other Internet site operators to take action to combat copyright infringement and piracy. Many of these large media companies had backed two anti-piracy bills before the U.S. Congress earlier this year  – known as SOPA and PIPA – which had proposed significant penalties for online pirating of copyrighted content, with particular aim at infringing foreign websites. That legislation was opposed by many constituencies, including Yahoo and Google, claiming it would abridge freedom on the Internet. The legislation ultimately died.

Google said it now receives more than 1 million copyright removal notices a week related to its search engine, and, in the last 30 days, had received over 4.3 million. To put this in perspective, the number of notices received in the last 30 days is more than what Google received for all of 2009.

It remains to be seen whether any others will follow Google’s approach, and whether this action will result in any diminishment of copyright infringement online.


Written by Susan Neuberger Weller

At a conference held June 18 at Stanford University Law School – The 9th Annual Stanford Ecommerce Best Practices Conference – it was reported that copyright holders are increasingly using the Digital Millennium Copyright Act’s (“DMCA”) notice and takedown procedures to address copyright infringement on websites. Continue Reading Copyright Owners Using DMCA To Take Down URLs

Written By Joseph M. DiCioccio

The Second Circuit has vacated District Court (S.D.N.Y.) Judge Louis L. Stanton’s June 2010 dismissal of Viacom’s $1 billion copyright infringement suit against YouTube.  In a thorough opinion, the Second Circuit remanded the case to the district court for further consideration of several key aspects of the case, including whether executives at YouTube had actual knowledge of specific infringing content sufficient to bar YouTube’s reliance on the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).

The dispute stems from a copyright infringement complaint originally filed in 2007.  Viacom (and a variety of other plaintiff content owners) accused YouTube of directly and secondarily infringing copyrights relating to content posted on the site between YouTube’s inception in 2005 and 2007 when suit was filed.  After discovery, the parties cross-filed motions for summary judgment.  The court denied Viacom’s motion but granted YouTube’s, primarily relying on application of the DMCA’s safe harbor.  Viacom appealed.  The Second Circuit has now issued an opinion in which it clarified some key DMCA issues and remanded the case to the district court for further consideration. Continue Reading Viacom Lives to Fight Another Day in YouTube DMCA Suit