Summary of Federal Laws
|Manager of Learning Environments
Miscellaneous Laws Affecting Universities
Digital Millennium Copyright Act of 1998 (DMCA)
This law also amended a variety of other sections of the copyright code.
The Digital Millennium Copyright Act (DMCA) makes major changes to copyright law, and attempts to address copyright in the digitally networked environment. Many questions remain unanswered as to what is "fair use" in the electronic environment and further litigation or legislation will be needed for clarification.
The law has five titles, the first four of which are of interest to postsecondary educational institutions. (The fifth title creates a new form of protection for the design of vessel hulls.)
Title I: WIPO Treaties Implementation
Title I amends copyright law to bring the U.S. law into line with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. The law provides that no person shall circumvent a technological measure that effectively controls access to a copyright protected work. The Librarian of Congress is to conduct studies on whether persons who are users of a copyrighted work are adversely affected in their ability to make non-infringing uses of a particular class of works. The study and accompanying rulemaking shall continue for three-year periods thereafter. The Librarian of Congress, in conjunction with the Register of Copyright and the Department of Commerce, is given the authority to publish any class of copyrighted works which have been adversely affected, and the anti-circumvention law will not apply to that class of works in the succeeding three-year period. The law states that nothing in the law shall affect fair use.
Exceptions exist with respect to the following (i.e., circumvention of technological safeguards is permitted): software developers using reverse engineering to achieve interoperability; law enforcement; encryption research; security testing; products or devices whose sole purpose is to prevent access of minors to material on the Internet; and protection of personally identifying information. In addition, an exemption exists for access by nonprofit libraries, archives, and educational institutions for the sole purpose of making a good faith determination of whether to acquire a copy of the work, and only when an identical copy of that work is not reasonably available in another form. The library must be open to the public, or available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field.
The United States Copyright Office is undertaking a public study to assess the operation of section 1201 of Title 17, including the triennial rulemaking process established under the DMCA to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. To aid this effort, and to ensure thorough assistance to Congress, the Office is seeking public input on a number of key questions. Initial comments due Feb. 1, reply comments due March 25, 2016.
The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. 512. Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices. To aid in this effort, and to provide thorough assistance to Congress, the Office is seeking public input on a number of key questions. (Comments due March 21, 2016.
2015 Exemptions from the DMCA ban on Technology Circumvention, Final Rule, Oct. 28, 2015.The exemptions to the circumvention ban issued this year include motion pictures for educational use, e-books for use with assistive technologies for the blind, or with visual or print disabilities, computer programs used to allow connection of a used device to an alternative network (including cellphones). For complete list see pages 3-4 of the Final FAQ. See the article dated 11-9-15 titled Copyright Office Issues DMCA exemptions for automotive software, jailbreaking smart TVs.
Final Rule, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 77 Fed. Reg. 65260, Oct. 26, 2012. Effective Oct. 28, 2012.See history of rulemaking on the Copyright Office page and a summary lists the new rules.See also Amy Cavendar Chronicle article Nov. 6, 2012 titled Comment on the New DMCA Exemptions. Also see the ArsTechica Summary on same. In terms of disability access, it is important to note improved access to DRM works for those with visual impairments. This was best summed up by Mark Richert, Esq., Director of Public Policy, AFB.
The Librarian of Congress recently announced a decision of significant import for the future of information access rights. Endorsing a favorable recommendation by the Registrar of Copyrights concerning a petition filed jointly by the American Foundation for the Blind and the American Council of the Blind, the Librarian of Congress has determined that copyright protection measures built into ebooks and other electronic materials will no longer pose needless barriers to the materials' use by people who are blind or who otherwise have print disabilities.
Under the Digital Millennium Copyright Act (DMCA), it is unlawful to circumvent digital rights management or related technological protections built into a work, such as an ebook, unless the Librarian of Congress has established an exemption allowing circumvention in certain contexts. The exemption that the Librarian of Congress has established now allows individuals with print disabilities, as well as public and nonprofit organizations with a primary mission to meet their information access needs, to avoid the subst penalties that would otherwise be imposed. The recently-adopted exemption ensures access to all:
"Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) when a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or (ii) when such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121."
This sweeping exemption represents a marked improvement over the original exemption first granted in 2003 but which the Copyright Office had abandoned altogether in recent years. By reinstating and expanding this exemption, it is now clear that both individuals and organizations may freely bypass copyright protection measures that get in the way of accessibility. By explicitly granting authorized entities (as defined by the so-called Chafee Amendment) to circumvent protection measures, and thereafter to widely distribute the content in specialized formats including electronic format, this exemption should prove very useful in the ongoing effort to achieve equality in information access.
The Librarian of Congress also granted a narrow exemption concerning audio visual works for the purpose of research and development in the fields of captioning and description. This limited exemption, while falling well short of the exemption proposed by the deafness and vision loss communities which would have broadened dissemination of third-party-produced captioned and described video content when rights owners fail to caption or describe their productions, will nevertheless help to facilitate the proliferation of new and creative means for the delivery of both captioning and description in the DVD and online video spaces. The full notice about the DMCA exemptions and all supporting materials can be found at: http://www.copyright.gov/1201
Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. Reg. 43825 (July 27, 2010) Final Rule
In this 15 page notice the Library of Congress issued six new classes of works that will be exceptions to the DMCA prohibition on circumvention of technological measures that effectively control access to copryighted works. The exception is effective July 27, 2010 and includes the following:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos
(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.
(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and
(6) 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 either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
See the Librarian of Congress Statement on this final rule. See also the EFF announcement celebrating the exemptions. See also the Inside Higher Ed article titled Movie Clips and Copyright, dated July 28, 2010, as well as the Chronicle of Higher Education article of the same day titled: Our new right to Fair Use of DVDs.
Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 71 Fed. Reg. 68472, Nov. 27, 2006
3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.
Title II: Online Copyright Infringement Liability Limitation
Title II of the Act limits the liability for monetary damages with respect to copyright infringement for an online service provider (OSP) (and this includes most postsecondary educational institutions which are OSPs) for copyright infringement in several situations. These defenses are in addition to other defenses available under copyright law. In order to be eligible for the exemptions from liability, however, the OSP must do the following:
adopt and implement a policy that provides for termination of computer privileges of users who are repeat infringers;
accommodate and not interfere with standard technical measures used by copyright owners to identify and protect copyrighted works; and
designate an agent for notification of claimed infringement by providing contact information to the Copyright Office and through the OSP's publicly accessible Web site.
The OSP does not need to monitor its service (i.e., monitor its students' Web pages) or go looking for copyright infringements in order to be eligible for the exemptions. However, once notified under the provisions set forth in the new law of a potential infringement, the OSP must comply with the notice and take down provisions of the law. The OSP does not need to access, remove or block material when such action is prohibited by other laws (such as the Electronic Communications Privacy Act).
If the OSP meets the above qualifying conditions for limitation of liability, then protection will be provided under the law when the service provider is engaged in transmitting or routing or providing connections for material through a system or a network, system caching (automatic process of making a temporary copy), storing information on a system at a user's request (such as a Web page) or referring users to material at other online locations through directories or hyperlinks.
The rules are fairly rigid and the conditions for obtaining the exemption are many. The university OSP would still have liability for those materials the university or its agents place online. However, an exemption exists which, in certain narrow circumstances, allows the university to disown acts of online copyright infringement by faculty and graduate students which may occur when they are performing teaching or research functions. To avoid liability, the infringing activities of the faculty member or graduate students must not involve the provision of online access to instructional materials that are or were required or recommended within the preceding three-year period, for a course taught at the institution by such faculty member or graduate student. Also, the university must not have received, within the preceding three-year period, more than two "valid" notifications (following requirements of the law for notification) of claimed infringement by such faculty member or graduate student, and the university must provide to all users of its system or network informational materials that accurately describe and promote compliance with U.S. copyright law.
Title III: Computer Maintenance or Repair Exemption
This section of the law allows the owner or lessee of a machine to authorize the making of a copy of a computer program for the purpose of repair or maintenance of the computer.
Title IV: Miscellaneous Provisions
This section of the law contains a number of miscellaneous amendments, two are of specific interest to universities. One provision directed the Register of Copyrights to consult with representatives of copyright owners, nonprofit educational institutions and nonprofit libraries and archives to submit to Congress within six months recommendations on how to promote "distance education" through digital technologies. The end result of this process was the Technolgy, Education, and Copyright Harmonization Act (TEACH ACT).. The bill was incoporated into HR 2215, the 21st Century Department of Justice Appropriations Authorization Act, (see section 13301) and became Public Law 107-273.
The TEACH Act amends sections 110(2) and 112 of the Copyright Code and gives accredited non-profit educational institutions the right to use portions of copyrighted works for online instruction without permission from the copyright owner as long as a number of preconditions are met, which include technical protection of the copyighted material. For a full summary of the duties imposed on institutions and faculty that wish to make use of this new law see The Meaning and Importance of the Teach Act: by Kenneth Crews. This summary groups the requirements of the TEACH Act by the unit within the institution that will be responsible for compliance.
Another provision of Title IV in the DMCA deals with updates to Section 108 of the Copyright Law is to allow libraries and archives to take advantage of digital technologies when engaged in specified preservation activities. The library or archive would be allowed to make up to three copies or phonorecords, rather than one, for purposes of preservation and security or for deposit for research use in another library or archive, and permits such copies to be made in digital as well as analog formats. Any unpublished work that is copied in digital format must not be otherwise distributed in that format, and must not be made available to the public in that format outside the premises of the library or archives. For digital copies made of published works, the copy must not be made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. Preservation of published works is also allowed if the existing format in which the work is stored has become obsolete.
Proposed Rule, Designation of Agent to Receive Notice of Claimed Infringement, 76 Fed. Reg. 59953, Sept. 28, 2011.
All service providers would be required to re-file and if necessary update their previously filed designations of agents to receive notifications of claimed infringement. Service providers that have filed an on-line designation would then be required to periodically re-validate the information set forth in their designations in response to automatic notices generated by the Copyright Office.
For more on this, see New Copyright Office Compendium Discussion About Designating Sec. 512 Agents (blog post on Technology and Marketing)
Rate Determination Proceedings
Digital Performance Right in Sound Recordings and Ephemeral Recordings, 76 Fed. Reg. 13026, March 9, 2011. This applies to the period commencing January 1, 2011 and ending Dec. 31, 2015. Codified at 37 CFR 380, Rates and Terms for Certain Eligible NonSubscription Transmissions, New Subcription Services and the Making of Ephemeral Reproductions. Subpart C applies to Noncommercial Educational Webcasters, and starts with section 380.20. This rate determination establishes rates and terms, including requirements for royalty payments, recordkeeping and reports of use for the public performance of sound recordings in certain digital transmissions. This proceeding adopts the agreement between Sounds Exchange and College Broadcasters Inc. set forth at 74 Fed. Reg. 40614, Aug. 12, 2009.
This rate determination proceeding (115 pages) is a finding by the US Copyright Royalty Board that sets new rates for webcasting sound recordings. It is applicable to IHEs. The rate is set at a flat fee of $500 per station or channel, with an increase for those who go above a certain level. The fee, collectable by SoundExchange are retroactive to Jan. 1, 2006.
Resources and Case law
Lenz v. Universal Music Corporation, Nos. 13-16106, 16107, (C.A. 9) (Sept. 14, 2015)
The case involved a notice of take down sent by Universal to YouTube claiming a video posted by Lenz in February 2007 of her two young children dancing to the artist Prince's song "Let's go Crazy". YouTube removed the video and sent an email to Lenz, who sent a counter-notification to YouTube. A second counter-notificiation resulted in reposting of the video. The plaintiff filed a complaint on July 24, 2007 and an amended complaint on August 15, 2007. After these were dismissed she filed a Second Amended Complaint alleging a claim for misrepresentation.
Ultimately the case ended up being reviewed de novo by the 9th Circuit. In analyzing the case, the court revised 17 USC 512 (c). This law requires identification of a copyrighted work, identification of allegedly infringing material, and statement the copyright holder believes in good faith the material posted is not authorized by the copyright owner, its agent, or the law. The court held that Universal was required to consider whether the potentially infringing material was a fair use under section 107 of the law before issuing a take down notification. In finding Universal did not show on the Motion for Summary Judgment that it had properly conduct this analysis, the court held there was a triable issue of fact as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. The court also held the plaintiff could seek nominal damages for an injury that occurred as a result of Universal's misrepresentation the posting violated the law.
The sole argument presented by defendant was that fair use is not "authorized by the law". The court squarely rejected this noting that fair use is not just excused by the law, it is wholly authorized by the law. The holding stated as follows:
"We conclude that because 17 USC §107 created a type of non-infringing use, fair use if "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512 (c)."
Failure to consider fair use at all subjects a copyright holder to damages under §512(f). Lenz can seek her nominal damages, and if she prevails at trial, may be able to recover damages and attorneys' fees.
June 4, 2010 Dear Colleague Letter from DOE on Institutional Requirements for combating the unauthorized distribution of copyrighted materials by users of the institution's network. The letter contains a sample summary of the criminal and civil penalties for copyright infringement that must be posted, as does the EDUCAUSE web page on this topic.
EDUCAUSE web page with 49 resources on implementing the peer to peer downloading provisions of HEOA. Excellent resource. Discusses the four categories of technology based deterrents: 1- Bandwidth shaping; 2- Traffic monitoring to identify the largest bandwidth users;3- A vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices; and 4- A variety of commercial products designed to reduce or block illegal file sharing.
NC State University's "TEACH Act Downstream Control" program is designed to prevent users from retaining or disseminating still images. Accredited non-profit higher education institutions may obtain a free copy of this program, for use in compliance with the TEACH Act, by emailing Henry Schaffer at email@example.com.
See the Copyright Notice and License Terms for TEACH Act Compliance Software for details on the program.
updated 2-8-16 to to add DMCA studies