Tag Archives: SOPA

Will The CFAA Take Center Legal Stage Over The Next Year?

Will the Computer Fraud and Abuse Act Take Center Legal Stage In The Months To Come?

Last week, Reuters, ran a piece on how the Computer Fraud and Abuse Act (CFAA) may take center stage in legal circles over the coming months. Specifically, the Justice Department has until August 8th to decide whether or not they want to request a U.S. Supreme Court review of a long-running, controversial employment case, in which the CFAA figures prominently.

The CFAA In Ten Seconds

Ratified 28-years ago – when most homes still didn’t have a personal computer – officials passed the Computer Fraud and Abuse Act. Its intended goal was to develop a law to punish hackers. But lately it’s being used to prosecute employees who download sensitive data.

A multi-section bill, the CFAA covers a lot of ground, but perhaps the most controversial line is the explanation of what constitutes illegality, that being: “intentionally access[ing] a computer without authorization or exceed[ing] authorized access.”

The Curious Case of David Nosal & The Dismissal of CFAA Charges

Take the David Nosal case, for example. Gleaning from reports, he and a few colleagues allegedly pulled what sounds like the modern-day equivalent of the Sterling, Cooper, Draper, Pryce midnight pack-up when making moves to open their own company. Irate over the situation, in 2008, their former boss filed lawsuits against all the alleged conspirators. Some accepted the charges and their resultant fate, but David Nosal decided to fight the charges – which included a CFAA count.

After extensive litigation and court appearances, the appeals court, in a 9 to 2 ruling, dismissed the charges related to the CFAA.

The Justice Department Ain’t Happy About the Dismissal

Over the past six years, approximately 1,050 CFAA-related cases (half federal, half civil) have been filed. But lawmakers and law enforcement agencies want to see that number go up in the future. Ostensibly to extend their sphere of influence, the U.S. Justice Department is keen to use the CFAA when prosecuting.

So would a lot of corporations.

Oracle is so invested in the measure that they filed a brief in support of the Justice Department that argued trespass doctrines are rooted in common law standards and should therefore be applicable when defining the scope of the CFAA. They argued that “Among [common law standards] is the concept of restricted authorization: a person commits trespass not only when he or she enters property or a portion of it when told not to; a person commits trespass also when he or she has authorization to enter for some purposes but enters for different ones.”

If the Justice Department does seek a SCOTUS review, and it doesn’t end up in the department’s favor, they risk losing one of their most effective “bullets.” If they win, however, it could theoretically usher in a new “Minitru-esque” era where logging onto Facebook or Twitter, or engaging in a little digital retail therapy at work, could land you in a lot of – possibly criminal — trouble.

Proposed Amendments to The CFAA

In an effort to satisfy the Justice Department’s wishes to make ample use of the CFAA, there has been talk of amending the arguably antiquated act to protect the average employee who may dabble in a little Internet activity during, say, their lunch hour. Specifically, officials are knocking around ways to exclude harmless violations from being prosecuted under the bill (i.e., social network users signing up using a pseudonym).

The Computer Fraud and Abuse Act has been widely interpreted in various courts. If you have a legal issue involving the CFAA, contact us today to explore your options. Our Internet lawyers are well-versed in all things CFAA-related and can help you work out the ideal solution.

Is Canada’s Proposed New Online Intellectual Property Law C-11 the Same as SOPA?

Canadian copyright act c-11
Is Canada’s new online copyright bill, C-11, similar to SOPA?

The Canadian House of Commons passed the Copyright Modernization Act (a.k.a. C-11) by a vote of 158-135. Like all current-day online copyright statutes, C-11 has its fair share of detractors. But Canada’s new online intellectual property bill did manage to get a lot of things right, with only one glaring dark spot.

The Long And Winding Road Of Online Copyright Legislation In Canada

Like their cousins to the south, Canadian legislators have been drafting and striking down online intellectual property laws for the past 15 years. But it looks like they may have settled on C-11, which does feature some impressive consumer protections. According to an industry Minister Christian Paradis, who was involved with copyright legislation, C-11 has “struck the right balance” and “will help Canadian creators and innovators to compete and contribute to attracting foreign investment to Canada, while ensuring that consumers, educators and users will have new protections that will give them full opportunity to engage in their digital world.”

C-11: The Good Points

Before we explore C-11’s glaring bad point, let’s discuss the laudable aspects. In addition to extended leeway granted to educational institutions, the new Copyright Modernization Act also:

  1. Extends “fair dealing (fair use)” provisions to include exceptions for parody and satire;
  2. Contains new back-up, format- and time-shifting rules that allow for greater operability of networked DVR systems and online television services;
  3. Explicit copyright exceptions for user-generated content that go a long way in protecting non-commercial “fan art” and “remixes”;
  4. Caps statutory damages for non-commercial infringement at $5,000;
  5. Features a notice-and-notice system as opposed to a notice-and-takedown system.

C-11: The Big Bad Digital Locks Provision

I keep mentioning this “dark spot” on C-11. What is it? The bill’s digital locks provision. Fiercely opposed by members of the Liberal and NDP parties, the digital locks provision in C-11 will essentially make it illegal for users to “rip” a CD they bought and upload it to their iPods. How so? Technically the law makes all breaking of “cyber locks” inherently illegal. As such, if a CD includes copying safeguards, using a piece of software to circumvent those measures will technically be illegal under the new piece of legislation.

Opponents of the provision rightly point out that C-11, in its current draft, doesn’t include language exempting individuals with disabilities who may need to break certain “locks” in order to utilize specialized assistive programs. For example, nearly every blind person in the country will have to break the law if they want to use a popular braille program. In a personal anecdote, NDP MP, Charlie Angus, tried to reason with fellow lawmakers by elucidating his daughter’s need for protection from prosecution:

“My daughter went through school deaf and to get copyright material she had to actually break the lock rhythm which is used to access material.” Why would [we] not work…on a clear amendment that would ensure that students with perceptual disabilities are not treated as criminals for accessing material in an educational format so they can succeed?”

Many, like University of Ottawa law professor Michael Geist believe the digital locks addition, and the Conservative party’s refusal to budge on the issue in cases of disabilities, is “strictly a function of U.S. pressure.”

Blind and deaf interest groups aren’t the only ones concerned about the all encompassing nature of C-11’s digital locks provision. In an interview, NDP heritage critic and musician, Andrew Cash, explained:

“Sharing of our work in the digital space is not necessarily a bad thing for the bottom line for artists. The guy who is uploading 10,000 songs to distribute all over the place for free is not the same as the guy who bought a CD or got a copy of it from a friend to get into. You don’t know how that guy is going to spend his money down the road. The problem now is that multi-million media companies want to stomp that behavior out of existence, but it is really counter-productive.”

And of course, just like in the United States, there are associations and lobbying groups that are all for C-11’s digital locks provision. Take the Entertainment Software Association of Canada; their position is that digital locks are necessary to keep their industry “thriving.” But even Jason Kee, despite being a pro-digital locks advocate, had to admit that “the industry is doing well in spite of piracy.”

Much like U.S. legislators promised about SOPA, those in support of C-11’s “dark spot” swear that if a digital lock is broken for personal use, it’s not realistic to expect the copyright holder to file a lawsuit because (1) how would they know, and (2) the time and legal fees involved would render the exercise pointless.

C-11 v. SOPA: Are They The Same Bill?

When Canada’s Digital Modernization Act was passed, the Internet erupted. Netizens were lamenting the fact that Canada passed a law EXACTLY like SOPA.

But is that really the case? Are C-11 and SOPA exactly alike? In a word: no.

First and foremost, in comparison to SOPA, C-11 does not contain “takedown or else” measures. C-11 doesn’t provide a legal method to financially strangle websites within a matter of days. Moreover, unlike SOPA, C-11 includes protections for “fan art” or “remixes” and distinctions are made between commercial and non-commercial use of copyrighted material.

C-11’s $5,000 cap on statutory damages for all non-commercial infringement also sets it apart from SOPA.

In terms of how both bills handle the removal process: C-11 features a “notice-and-notice” system as opposed to SOPA’s “notice-and-takdown” method. That means content is not stricken from the Internet until both parties have had a chance to fairly weigh-in.

Several news outlets are reporting that the bill will most likely pass the Senate and enacted before summer’s end. Those looking to adjust the digital lock provision, however, are saying “not so quick.”

According to Geist, provinces maintain jurisdiction over civil and property rights; as such, there is an effort to challenge the bill on constitutional grounds by arguing that the digital locks are a personal property rights issue, not intellectual property, and therefore out of the federal government’s purview.

I expect that if C-11 does pass in the Senate before summer break, Canada is in store for some vocal partisan debate over this online intellectual property issue for months to come. To keep up with the latest Internet law news, sign up for our newsletter.

DMCA Takedowns & The RIAA: Common Sense Intellectual Property Advocacy or The Height Of Hypocrisy

DMCA TakedownIn the U.S., the Digital Millennium Copyright Act has been the law of the land since 2000. Like many Internet laws, the DMCA has its supports and detractors. Those in favor of the act see it as an effective way to protect intellectual property that finds its way onto the Web; anti-DMCA advocates feel the statute is an out-dated process that does little more than cause confusion and provide a way for market adversaries to unfairly “knock-off” a competitor.

Since the DMCA is currently the most viable way for copyright holders to legally combat Internet infringement, entertainment associations and media conglomerates, like the Recording Industry of America, British Recording Industry, Motion Picture Association of America and NBC Universal, use the statute to aggressively combat piracy. But many think these organizations are nothing more than well-financed copyright trolls who abuse the DMCA takedown process and unfairly expect special treatment.

While both sides’ arguments are based in legal precedence, it may be time for governing officials to re-examine the current state of online piracy. Because at the end of the day, the question politicians should be asking is whether or not the effort and money spent on drafting, promoting and enforcing digital copyright statutes – which is often based on biased propaganda – is right for the United States – a country drowning in debt that could use a healthy dose of innovation injection.

Before We Begin, Here’s A Little Background on the DMCA Takedown Process

While nuanced, the purpose of DMCA legislation is simple: the bill provides a way for copyright and trademark holders to report online intellectual property infringement with the goal of having the material exorcised from the Internet.

How it usually works is that a lawyer first files a DMCA takedown request on behalf of an individual or business. The notice usually includes specific legalese requesting that a piece of protected material be removed from the Internet. Once an entity is in possession of a DMCA takedown notice, by law, they are required to notify the alleged copyright infringer and give them the opportunity to file a counter-notice.

If the DMCA takedown notice is sent to a search engine like Google, and the original DMCA takedown request goes uncontested, the search engine usually removes the link to the offending material from their index. Historically, it used to take several weeks to see results. According to recent reports, however, some DMCA takedown requests are handled within 11 hours — a questionable stat considering the act does contain provisions for challenge responses.

While the DMCA process is often effective, if you believe a report published by Google, nearly 57% of DMCA takedown notices are initiated by business competitors, and 37% are bogus.

Google Releases DMCA Takedown Statistics for May

As part of their transparency initiative, Google publishes their monthly DMCA takedown stats for all to see – and the numbers are staggering. Catch this:

Google processes nearly 1.5 million a month! To put things in perspective, the entirety of 2009 saw a total of 1.2 million DMCA takedowns.

According to Google’s stats, Filestube.com – a Polish file sharing company – received the most number of DMCA takedown requests. Extratorrent.com came in second. Which companies are requesting the most takedowns? Those honors go to Marketlly, NBC Universal and the British Recording Industry (the UK equivalent to the RIAA).

Fun Fact: in May 2012, the total number of DMCA takedown requests filed by NBC Universal and the British Recording Industry came close to half a million for the month.

RIAA Responds To Google’s DMCA Takedown Data With Whiny Missive

The Recording Industry Association of America is a major voice in the “stop piracy at all costs” camp. As the lobbying arm for major recording labels, it seems the RIAA’s primary goal is to punish pirates and act as an online infringement-busting battalion.

One of their favorite tools of combat is eye-popping statistics. Recent RIAA propaganda asserts that $58 billion dollars and 373,000 jobs have been lost to piracy. Now, when the average person or politician hears those numbers, it’s almost impossible not to fall down on the side of piracy-busters. But as Rob Reid points out, those numbers are, at best, bombastic, and at worse, flat out impossible.

Despite the above logic, the RIAA contends that Google isn’t doing enough to terminate all link-removal requests. As such, the association wants to be able to run as many search-and-destroy bots as they want on Google’s servers, which theoretically mark and disable all links to “copyrighted” material, automatically. The problem is that bots aren’t perfect — so what happens if the bots mistakenly take down perfectly legal content?

Why The RIAA’s Special Treatment Requests Would Be A Gigantic Legal Blunder

You may still be thinking: “Stealing is stealing; why shouldn’t the RIAA be given the opportunity to develop permanent methods to protect their members’ online intellectual property?” It’s a fair thought, but the nature of the law is gray, rendering such black and white thinking dangerous when legally analyzing the DMCA.

Take Edwyn Collins, for example. If you can name all the Keaton children in ten seconds, then there’s a good chance you’ll remember Edwyn – the “A Girl Like You” one-hit-wonder singer. Being that the song is now 15 years-old, and all the licensing agreements have run their course, Collins thought he’d put the song up on his MySpace page.

Warner Music (his old label), however, was having none of that; the recording company sent in a DMCA request to MySpace, which was executed almost immediately. When Collins protested and tried to explain to MySpace that Warner Music no longer held the rights, his pleas were ignored.

To make a long story short, it took many months – and many emails containing an “Orwellian MySpace copyright re-education page” — for the musician to prove he was the rightful copyright holder of the song. While the issue did finally get cleared up, Collins can’t help pointing out that his song still appears on many a compilation CD, and labels are profiting off it, even though they don’t have the rights. As Grace Maxwell – Collins’ wife and manager – said, “[We are] aware of who the biggest bootleggers are, it’s not the filesharers.” She then went on to claim that “A Girl Like You” is illegally sold “all over the Internet…by all sorts of respectable major labels whose license to sell it ran out years ago and who do not account to him.”

David and Goliath copyright battles aren’t the only legal pitfall that may arise if organizations like the RIAA are granted unfettered access to troll the Net for alleged copyright infringements. Most forget about the DMCA’s perjury penalty provisions.

From the Digital Millennium Copyright Act:

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In laymen’s speak that translates to: if you file an erroneous DMCA takedown request, expect to be charged with perjury. In the United States, perjury comes with a hefty price tag. Convicted prevaricators can be fined up to $10,000 per incident or imprisoned for up to 5 years.

So let’s review. Automated copyright-sniffing bots are highly fallible and the Digital Millennium Copyright Act contains perjury penalties for falsely reported claims. Therefore, logic demands that the RIAA should think twice about launching proprietary DMCA-inspired content deactivators. If they don’t, the lobbying giant may end up paying more in damages than they actually lose to piracy.

Protecting one’s intellectual property rights is essential; but new communication and sharing models are an opportunity for artists and intellects to explore new distribution and promotional methods. Because when you examine the numbers, it’s obvious that “piracy” – in many cases – actually leads to better sales. Moreover, with even Broadway attendance up, it’s time for lobbying groups like the RIAA to stop publishing inaccurate, eye-popping loss numbers that give the impression that the music and movie industry are suffering more than they are.

Bottom line: responsible online intellectual property laws are needed; using Internet copyright legislation to clog up the courts and threaten innovative sharing and communication platforms, however, should have no place in 21st century litigation.

UK Makes Move In An Attempt To Stop Online Piracy

online piracy
The UK High Court Has Said That Broadband Companies Must Block The Pirate Bay. Will It Work In Stopping Online Piracy?

Officials in the United Kingdom have made a bold move in the Internet copyright infringement and online piracy battle; they’ve ordered broadband providers to block infamous torrent search engine, The Pirate Bay.

But many feel the High Court’s decision will do little, if anything, to thwart pirates’ online piracy plans.

What Is The Pirate Bay? Why Do Officials Consider It Such An Online Piracy Threat

Nearly every article about online copyright infringement law mentions ubiquitous torrent site, The Pirate Bay.  One of the most well-trafficked websites in the world, The Pirate Bay consistently ranks in Alexa’s top 100 worldwide.

Now you may be wondering, “well, if it’s a known site for online piracy, why can’t governments shut them down easily?” The legal crux is in the nature of the website itself. You see, The Pirate Bay does not host any illegal torrents on its servers; it simply acts as a search engine for said torrents. And since many countries legally prescribe to the precedent that linking to material alleged to be in violation of intellectual property statutes is not illegal, it’s tough to find a way to shut down these sites without walking dangerously close to the censorship line.

High Court’s Online Piracy Decision

Despite the fact that The Pirate Bay only acts as a search engine, and does not host the actual infringing content, Justice Arnold of the England and Wales High Court decried that the website “actively encourages copyright infringement” on a “grand scale.” The judge also chastised the site’s operators, saying that they treat “any attempts to prevent [copyright infringement] with contempt.” He also opined that The Pirate Bay was undermining new British musical talent.

And then Judge Arnold dropped the bomb and passed an edict that broadband companies must block The Pirate Bay.

TalkTalk, O2, Virgin Media, Everything Everywhere and Sky have all announced their plans to comply. BT is still reviewing the proposal, but are expected to fall in line as well.

According to various reports, the broadband companies will be using technology similar to pornography blocking software.

Will The UK High Court’s Ruling Effectively Combat Online Piracy?

The question is, though, will the UK High Court’s decision actually succeed in combating online copyright infringement? Most tech-savvy people are saying, “probably not.”

After all, those who actively use torrent sites also know how to block their IP address and other handy illegal downloading tricks of the trade. In fact, TorrentFreak.com has already published an article explaining how users can take advantage of programs like i2p TOR, and other VPN options; they also advocate switching to an open DNS. The UK pirate party has also announced plans to operate a “proxy workaround.”

Moreover, analysts point out that by taking such an extreme action against online piracy, the court has inadvertently made the pirates Robin Hood-esque heroes. Not to mention that this ruling puts the cost onus on the ISPs, not the infringers.

And as they say, there’s no such thing as bad publicity. Since the news broke about shutting down The Pirate Bay in the UK, operators of the site say they have seen 12 million new visitors to the site.

Bottom line: blocking access to torrent sites is going to do very little to stop online piracy. And we can chase the problem with laws all we want to no avail. The truth is that some of these media distributors should probably start looking for more innovative ways to deliver content to the masses more quickly. After all, it’s the Internet-age, and I bet the movie studio or record label that first figures out a way to satiate our instant gratification needs, at a “new economy” price-point, will reap significant financial rewards and turn a large portion of the online pirates into paying customers.

Congress Passed CISPA. But Will It Become Law?

Will CISPA Become Law?

Yesterday, in a 248-168 vote, Congress passed H.R. 3523, the little discussed Cyber Intelligence Sharing and Protection Act (a.k.a., CISPA, a.k.a. the Rogers-Rupperberger  Cybersecurity law). At first compared to SOPA and PIPA, CISPA includes an intellectual property component. Proponents, however, insist its purpose is to eradicate information sharing road-blocks between social networking platforms and Internet service providers.

If passed by the Senate and signed into law by the President, CISPA would make it legal for social media platforms to give personal information about users to the government.  In an effort to thwart digital security threats, CISPA would also make it possible for government agencies to share classified information with networks.

What IS CISPA, Who Supports It And Why?

An amendment to the National Security Act of 1947, CISPA’s primary purpose is to allow for information sharing between private entities (i.e., social networking platforms and Internet service providers) and federal agencies.

CISPA defines a cyber-threat as any “vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from either efforts to degrade, disrupt, or destroy such system or network.” It also asserts that a “threat” could be the “theft or misappropriation of private or government information, intellectual property or personally identifiable information (PII).”

CISPA supporters insist the bill’s mention of intellectual property has nothing to do with downloading Mp3s and movies, but instead only refers to “research and development” data (i.e., corporate and government secrets).

Also, unlike SOPA and PIPA, CISPA is backed by several power-house tech companies like Facebook, Microsoft, IBM, Intel and Verizon – most of whom vehemently opposed SOPA and PIPA. The U.S. Chamber of Commerce and the majority of Republican representatives in Congress also support the Act. All have different reasons for backing CISPA. Perhaps some of the IT companies fancy having access to classified information; maybe CISPA supporters truly believe it’s the best bill to combat cyber terrorism.

Father of the Internet, Tim Berners Lee, Representative Ron Paul, the White House and The Constitution Project are amongst CISPA’s opponents. All believe the bill threatens personal privacy rights.

Will CISPA Be Used To Prosecute Pirates?

According to CISPA advocates, the law will not be used to go after illegal downloaders, but is that really the case?

Bill backers insist they’re only concerned with material related to cyber criminality and espionage, yet they fail to define parameters for each. As a result, it’s possible that the government will declare an element of a given bit-torrent file germane to an electronic threat, and bingo, information about the “seeds” could be handed over under the auspices of CISPA.

They say they won’t do that, though.

Since CISPA includes a provision that allows citizens to sue the Federal Government for misusing any data obtained through CISPA, it will be interesting to see, if it’s passed, whether or not they try to use the bill to thwart online piracy, and if in doing so end up getting sued because of it.

Will CISPA Make It To The Law Books?

Congress gave CISPA the stamp of approval yesterday, but will it become a law?

The White House has already said they will veto the bill in its current state; moreover, the Senate is a cyber-security kill joy – it’s known as the place where cybercrime bills go to die. If the trend continues, CISPA may have seen its hay-day yesterday and will soon be thrown in the “abandoned bills” pile.

Still, civil liberty watchdog groups are sounding the CISPA warning bell in the hopes of garnering public outrage against the act, like they did for SOPA and PIPA.

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A Pinterest-ing Copyright Infringement Situation

Pinterest, a new-ish social network, like Facebook and Google before them, is settling in for, what looks like, a long ride on the copyright infringement controversy train . Long and bumpy though it may be, the ride is sure to be fraught with less-than-positive publicity — but as they say in the business: there’s no such thing as bad publicity.

Pinterest Copyright Infringement

What is Pinterest?

Pinterest is essentially the Internet’s refrigerator door. People can “pin” their pictures, recipes, artwork and homemade homilies for all to see.  Think of it, also, as your own virtual bulletin board where you can “pin” things found online. Say you see a recipe on a website or a picture of a unicorn that you want to save. With the Pinterest pin, which becomes attached to your browser toolbar after signing up, you pin the recipe or image and it’s saved in your Pinterest account.

Like many social media sites, the pervasive attitude in the Pinterest community is “sharing (and admiring the works of others) is caring.”

Currently, if you want to be a pinner, you either have to be invited by an existing pinner or submit your request to be invited. Yes, there is a waiting line.

Pinterest’s Copyright Infringement Problem

The only fly in the Pinterest ointment, at this point, seems to be the pesky issue of copyright infringement — and it has to do with the way Pinterest is structured. Simply stated, the platform doesn’t make it easy to find the original owners of images.

When an admiring fan of your latest card trick pins it to their Pinterest account and it gets repinned by subsequent fans, your copyrights to the photo might get lost in the shuffle. While that may not be a big deal to some, you’ve just lost your ace-in-the-hole ticket to international card trick stardom. Instead, Johnny Magician has just announced his upcoming appearance on the Letterman show where he’ll be featuring the trick you created.

Google Sets Online Copyright Infringement Precedent

Back in 2006, Google was taken to court for copyright infringement over thumbnail images that weren’t properly attributed to their rightful copyright owners. But Google was vindicated the next year, which set legal precedence. As a result, ironically enough, both sides of the Pinterest copyright infringement issue point to the Google case in their arguments.

The Pinterest supporters claim that Pinterest’s posting of images is no different than Google’s. The naysayers proclaim that since Pinterest’s images are full-size, full-resolution images, the situation is different and the laws that gave Google safe harbor don’t apply to Pinterest.

DMCA Copyright Infringement Avenues

Currently, Pinterest is following the rules outlined in the DMCA. When a complaint is found to be valid, Pinterest need only remove the image. Trying to trace the image back to its original poster is no easy task, especially when it’s been repeatedly repinned from one place to another. If that image is yours and it’s been repinned more often than a 70s Farrah Fawcett poster, you’ll need to fill out a formal DMCA Notice of Alleged Infringement. Pinterest will then take action as they see fit.

If You Upload It, You Better Own It

Here’s the current rule as outlined in Pinterest’s Terms of Service: if you upload something to Pinterest and they sell it, which they can do, and it subsequently becomes embroiled in copyright infringement litigation, which it could, guess who’s butt is on the line?

Even without malicious intent, it’s so easy for a Pinterest user to pin something that could be an unintentional infringement of the owner’s copyright. That fact doesn’t escape the vengeful eye of the SOPA supporters who are lurking on the sidelines.

We’ll see how this Pinterest copyright infringement issue turns out; in the meantime, if you’re in need of some copyright protection or enforcement, give the Kelly Law Firm a buzz.

Comparing DMCA and SOPA

Copyright Law Summary
Comparing DMCA and SOPA: What's the same and what is different?

SOPA is the big online copyright legal story of the year thus far. Which got me thinking about the good ‘ole Digital Millennium Copyright Act (DMCA) — the current work-horse of Internet intellectual property law.

In this article we’ll briefly review each bill. So grab a cold one and settle in as we de-construct the various intellectual property laws currently in the news and try to make sense of it all in plain English.

Comparing DMCA and SOPA: What the Heck is DMCA, Anyway?

DMCA, for those of you who don’t obsessively follow the law, is the Digital Millennium Copyright Act. Thanks to anti-circumvention statues in the bill, the DMCA is the US copyright law that makes it illegal for you or I to manufacture devices or services meant to access or reproduce copyrighted material.

It’s also the law that outlines the legal steps one should take if they feel their copyrights are being infringed upon.

Comparing DMCA and SOPA: Enter SOPA, Y’all

On October 26, 2011, the Stop Online Piracy Act (SOPA) was introduced as a US bill by Texas (R) Rep. Lamar S. Smith. The bill’s purported original intention was to round up and remove rogue websites from the Internet’s virtual “phone book.” If a site was targeted as “rogue,” the act, as it was written, would make it legal to quickly remove the site from the domain name system — and poof, gone! Now you see ‘er, now you don’t.

Lamar’s plan also included, if necessary, the issuance of court orders to keep payment facilities and advertisers from doing business with the likes of Google, Wikipedia, Facebook. Under SOPA, they would be forced to remove any links to offending websites that allowed any copyright infringing. If they continued to link to those websites that harbored the infringing material, they’d be in danger of being closed down and prosecuted, too.

Comparing DMCA and SOPA: One Bad Apple Don’t Spoil the Whole Bunch!

If one bad apple infringes upon copyrighted material and posts it on a website, the DMCA currently allows “safe harbor” protection to Internet sites from any liability based on the actions of that one bad apple. With that in mind, opponents to SOPA claim the proposed bill threatens innovation and free speech. The enforcement of the laws would block access to entire Internet domains because of one posting on a blog or webpage.

Even libraries have expressed concern that they could be exposed to prosecution. The specters of First Amendment violations and censorship suddenly arise.

You Say You Want a Revolution: Anti-SOPA Day

On January 18, 2012, Reddit, Wikipedia and 7,000 of their closest website friends either closed their doors or otherwise illustrated their protest of the SOPA. They did so with protest banners on their websites in an effort to raise public awareness.

On January 19, self-proclaimed members of Anonymous (a “hacktivist” group) imposed their wills and skills on several pro-SOPA websites like RIAA, CBS.com and more. They shut those bad boys down or slowed them up a bit with denial of service attacks in retaliation for the D.o.J. (Dept. o’ Justice) shutting down Megaupload on that same day.

SOPA: The Post Script

To clarify, rectify and mollify, an aide to Rep. Lamar Smith insisted that an individual posting a video on YouTube of their adorable child adorably singing a copyrighted song would not be considered a felon. Suspiciously, however, the aide did not address the issue of singing parrots, a burning question on the minds of many.

In December, 2011, both bills were tabled indefinitely. It would appear that intellectual property rustlers and renegade rogue websites will have their way with us for now. The DMCA, the prevailing law of the land, will have to stand on its own as the sole guardian to our intellectual property. If history has taught us one thing, however, it is that eternal vigilance is our duty. While it certainly is our God-given right to be naive, it only makes us look bad. Keep your eyes to the skies, the rogues are out there.

DMCA Definition: The Digital Millennium Copyright Act Explained

The Digital Millennium Copyright Act or DMCA is currently one of the laws of the land when it comes to online intellectual property issues.

Lately, the Digital Millennium Copyright Act (DMCA) has stepped into the spotlight as a result of the ongoing SOPA and PIPA debates. Passed unanimously on October 12, 1998, the DMCA is the current law of the land when it comes to various online copyright legalities.

The Digital Millennium Copyright Act amended Title 17 of the United States Code, extended copyright reach, established new anti-circumvention laws, limited the liability of online service providers (OSPs), and made boat hull designs a protected class. The bill was broken out into five sections — below is a summary of each.

DMCA Title I: WIPO Phonograms Treaties Implementation Act

The first section of the DMCA changed the law so U.S. Code complied with the WIPO Treaty. It’s the portion of the act that addresses various anti-circumvention statues. Anti-circumvention laws dictate what one can and cannot do with a piece of technology.

Title I of the DMCA also disallows for reverse engineering in certain instances; and, perhaps unintentionally, the Act effectively created a monopoly for Macrovision in the video recording copyright prevention arena.

DMCA Title II: Online Copyright Infringement Liability Limitation Act

Perhaps the most talked about part of the DMCA falls under Title II of the bill. It’s the part that absolves ISPs, OSPs and certain website operators of liability when users of their site commit acts of intellectual property infringement.

Title II also outlines the notification steps one must take if they feel a website has infringed on their intellectual property rights – a document that has come to be known as a “DMCA Takedown notice.” This section also details what one can do if they’ve been sent a DMCA Takedown notice and want to fight the claim.

Title II also outlines provisions that allow for subpoenas to service providers for users’ identities.

DMCA Title III: The Computer Maintenance and Competition Assurance Act

Essentially, Title III of the DMCA makes way for computer repair professionals to create temporary back-up copies of certain digital information when working on a project, without fear of prosecution.

Title IV: Miscellaneous Regulations

DMCA Title IV of the DMCA is a potpourri of various statues. The section spells out the role of the Copy Right Office of the United States; sets transient statues for broadcasters; establishes rules to allow for long distance education; outlines phonorecord provisions for libraries with recording collections; and lastly, section IV outlines a collective bargaining agreement that has to do with movie rights.

DMCA Title V: The Vessel Hull Design Protection Act

The last section – Title V – of the Digital Millennium Copyright Act has very little to do with the digital millennium. Instead, Title V deals with boat hull designs. Previously, boat hull designs were treated as utilitarian and therefore didn’t qualify for copyright protection. The DMCA, however, reversed this stance, thus making it possible for boat hull designers to register their designs for intellectual property protections.

History of U.S. Copyright Law: Copyright Basics (Part I of IV)

Copyright Law Summary
Everything You Wanted to Know About U.S. Copyright Law But Were Afraid to Ask!

Taking A Look Back At U.S. Copyright Law

Recent debates over pending new Internet copyright laws got me thinking about the history of American copyright law. Traditionally, changes in copyright statutes often mirror the technological growing pains of our nation. And as we stand here now, in the looming shadow of SOPA, and look back at our nation’s intellectual property track-record, it’s apparent that we have yet to break our reactionary, knee-jerk habit when it comes to rights’ protection.

This week, we’ll be posting a series of articles looking back at the history of copyright law in the United States. We’ll start off today with a brief overview of a few copyright law facts; on Thursday, we’ll delve into early U.S. copyright law (1790 – 1909); on Friday, we’ll take a look at international copyright standards enacted starting in 1976; and next Monday, our final installment will cover copyright laws passed in the 1990s and the proposed bills currently being considered in both the House and Senate.

(Be sure to book mark our blog to keep up with our copyright law series!)

U.S. Copyright Law and The Constitution

United States copyright law is authorized by Article 1, Section 8, Clause 8 of the U.S. Constitution – also known as the copyright clause. It reads:

“The 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.”

An arm of the Library of Congress, the United States Copyright Office is responsible for all administrative duties associated with copyright registration and the like. Copyright law is primarily governed on the national level and state copyright laws cannot protect works that national copyright law does not.

U.S. Copyright Law: The Creativity Clause

In the United States, for a work to be considered appropriate for copyright protection, it must possess a “modicum of creativity.” As such, “sweat of the brow” efforts (i.e., labor, time and resources associated with compiling a phone book) are not protected under U.S. copyright statutes.

U.S. Copyright Law: Ideas are Off Limits

One of the most important facts to remember about copyright protection in the United States is that ideas cannot be copyrighted. The expression of an idea is protected, but not the idea itself. For example, an author can copyright a book that discusses democracy, but nobody owns the right to democracy itself (though some political pundits would try to convince you otherwise).

Internet Copyright Fun Fact: A link to an image isn’t considered reproduction, but simply instructions to a browser to jump to said location

U.S. Copyright Law: What Amount Constitutes Felony Infringement

Perpetrators caught with more than seven infringed copies of an audio-visual work, or 100 sound recordings, can be brought up on felony copyright charges. If you’re convicted of felony copyright and it’s your first offense, expect a fine of no more than $500,000 or imprisonment of 5 years or less. If it’s your second offense, double those figures.

Educational institutions, public broadcasting outlets and archives are all exempt from felony copyright charges.

U.S. Copyright Law: Registration and Damages

Registration is important if you’re looking to actively protect your copy rights. It’s necessary if you wish to obtain statutory damages in litigation.  Moreover, while displaying the copyright mark is not necessary it’s smart to do so as it reduces the possibility of someone claiming “innocent infringement.”

In a copyright infringement case, a plaintiff can request for both statutory and actual damages, but cannot be awarded both – the Judge decides which is awarded.

Be sure to check back tomorrow, for a little early United States copyright law. Believe it or not, it won’t be boring. Hint: our founding fathers sure had a different opinion about copyright then we do now!

Why Is Wikipedia Down Today? Blame SOPA

On January 18, 2012, thousands of folks settled into their desks for the day, only to find out that many popular websites weren’t working. Even Google had a special message on their homepage. And it all had to do with the Stop Online Piracy Act, a.k.a., SOPA.

The Internet didn’t break that day. It was anti-SOPA day — and many high-profile websites “went dark” for 24 hours to protest against the far-reaching online intellectual property bill that was swiftly making its way through the government.

Like most political issues, there were two sides to the SOPA story — those that fiercely defended the measures, and those who fiercely opposed them. But unlike many political issues, SOPA was not a fight being fought along party lines. Instead, it broke down to Internet businesses, Constitutional watchdogs, the public, and a group of elected officials, against the Motion Picture Association of America, a few other elected officials and a smattering of special interest groups. The first group felt that SOPA threatened Free Speech, and, if passed, would have ushered in an era of online censorship, while the second group felt the bill was necessary to protect American jobs and intellectual property.

Eventually, lawmakers pulled the proposal and that was the end of SOPA. That said, officials are still hard at working trying to craft an online intellectual property law.

The SOPA, Rotten Tomatoes Analysis

SOPA views from opinion makers around the Net. A tomato represents an anti-SOPA standpoint, and the splats…well…you know what the Splats mean.

SOPA opinion
“If you want an Internet where human rights, free speech and the rule of law are not subordinated to the entertainment industry’s profits, I hope you’ll join us…”
-Cory Doctorow of Boing Boing
SOPA opinion
“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.”
-The White House
SOPA opinion
“We oppose the passage of the SOPA bill as currently drafted, hundreds of millions of customers rely on our services every day so we don’t plan to shut those down to express our view.”
-Microsoft on SOPA


SOPA opinion
“While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet…”
– Chief Technology Officer of the U.S.
SOPA opinion
“There isn’t one technology company or venture capitalist who supports these bills…
This bill reverses the policy that has been in place since the beginning of the Web, that Internet companies shouldn’t be liable, nor should they be required to police or snoop on their users.”
-Markham Erickson, executive director of NetCoalition, to ABC News
SOPA opinion
“An ‘Internet blackout’ would obviously be both drastic and unprecedented. We hope that the Senate will cancel its scheduled vote on PIPA so that we can get back to working with members on how to address the concerns raised by the MPAA [Motion Picture Association of America] and others without threatening our nation’s security or future innovation and jobs.”
-NetCoalition official statement


SOPA opinion
“This is going to be wow, I hope Wikipedia will melt phone systems in Washington on Wednesday. Tell everyone you know!”
“I think it would be better burn them down and start over,[t]he entire approach is philosophically wrongheaded. I think you should follow the money … don’t place the burden on the innocent third-parties on the Internet, [c]ensorship is never going to be the right answer.”
-Jimmy Wales, Wikipedia Founder
SOPA opinion
“More than 2.2 million hard-working, middle-class people in all 50 states depend on the entertainment industry for their jobs and many millions more work in other industries that rely on intellectual property. For all these workers and their families, online content and counterfeiting by these foreign sites mean declining incomes, lost jobs and reduced health and retirement benefits.”
-Michael O’Leary of the Motion Picture Association of America
SOPA opinion
“Like many businesses, entrepreneurs and Web users, we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet…[s]o tomorrow we will be joining many other tech companies to highlight this issue on our US home page.”
-Google spokeswoman


SOPA opinion
Former senator Chris Dodd, who now chairs the Motion Picture Association of America, called the blackout a “gimmick” and called for  supporters to “stop the hyperbole and PR stunts and engage in meaningful efforts to combat piracy.”
SOPA opinion
“We are not adjusting the consumer experience on our properties tomorrow, but we will be helping to drive awareness of key issues around these bills to our users…
-Tekedra Mawakana, AOL
SOPA opinion
This publicity stunt does a disservice to its users by promoting fear instead of facts…Perhaps during the blackout, Internet users can look elsewhere for an accurate definition of online piracy.”
-Lamar Smith, SOPA sponsor

Hackers Plan SOPA-Free Satellite Internet

Internet satellite
Would a government-free, satellite Internet put an end to obtrusive online regulations and statutes?

I’ve said it before and I’ll say it again: technology innovators are often light years ahead of lawmakers – and members of the CHAOS Communication Conference think they have a way to thwart H.R. 3261, aka, SOPA. Their plan? Set up an alternative Internet, free from undue government censorship.

Why A Government-Free Satellite Internet?

Say what? Okay, let’s bring you up to speed.  Since the Internet’s inception, we’ve all gotten used to being able to freely post our thoughts and feelings about myriad subjects.  Sometimes, these expressions can take an artistic form, which often translates into some reproduction of art, music or favorite movie clip.

The music- and movie-industry backed legislation — introduced as House Bill 3261, the Stop Online Piracy Act — is supposedly designed “To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes.”  But, when you apply the pending law to common Internet activity, it means the “Pulp Fiction” clip on your Facebook wall could result in your account being closed.

“No Worries,” Says CHAOS, “We’ll Just Make Our Own SOPA-Free Internet!”

But if you think “hacktivists” are going to take SOPA sitting down, think again.

CHAOS collective is talking over plans to create their own Webspace by launching a fleet of low level satellites.  However, there are some technical issues with this solution.  First, the satellites would not be geostationary.  This means access would be sporadic, and users could end up waiting 90 minutes for their access point to orbit.  Second, satellite-Internet users would need a $130 base receiver to access this new network – a financial limitation for many. Finally, to get this plan off the ground, they, well, they have to get these satellites off the ground — which is no small feat.  The current plan is to build a private space program with launch capabilities.

Good luck guys and gals!


While we may not see a satellite, gov-free Internet for quite some time, what’s going on in Washington should be of paramount importance to any web entrepreneur.  There is a blurring line between free speech and what constitutes the theft of intellectual property.  First Amendment rights have expanded to protect “seeking, receiving and imparting information or ideas, regardless of the medium used”.   As you start your web-based business, be sure you know just where your intellectual property begins, and ends, by working with an online intellectual property attorney.

Reddit: Ground Zero For SOPA Opposition

SOPA and Reddit
Reddit is mobilizing to stop SOPA

As you’ve probably heard by now, the United States government is poised to enact a sweeping online intellectual property bill within the next several months. The Stop Online Piracy Act – affectionately known as SOPA – would arguably alter the Internet in dramatic fashion.  If ratified, torrent sites, like thepiratebay.org, would be inaccessible in the United States. Moreover, many speculate that SOPA could be the death knell for popular social content platforms, like YouTube, Reddit and DIGG.

And the Reddit community is fighting hard to make sure that doesn’t happen.

First Things First: What Is SOPA?

In the simplest terms, SOPA aims to eradicate online piracy by giving copyright holders and federal officials the ability to shut down torrent websites that allow users to download music, movies and other media for free. Websites deemed “rogue” —  both foreign and domestic — would, essentially, be forced offline within a matter of days after receiving a copyright infringement notice.

Social media and news-aggregation communities would also ostensibly crumble under SOPA, as user links to “rogue” material would trigger the draconian take-down measures outlined in the Stop Online Piracy Act.

SOPA supporters say the bill will save American jobs; opponents insist it will cause an Internet innovation slump, threaten Free Speech and usher in a new era of online censorship in the United States.

Reddit: Ground Zero For SOPA Opposition

While there is a lot of online chatter about SOPA, news aggregation site, Reddit.com, is ground zero for anti-SOPA activity and information. The issue is of primary importance to both the site’s users and administrators, because as Reddit General Manager Erik Martin put it, “[SOPA] would kill Reddit. We’re a platform, so normally we would not take a stand on any political issue, but this one would end our ability to run the site.”

Reddit users eagerly track every second of the SOPA saga and are constantly mobilizing readers into “call your congressman” campaigns. Citizen petitions birthed on the website have gone viral and garnered thousands of signatures. Most recently, Redditors realized that domain registrar, GoDaddy.com, was in support of SOPA. Outraged, the community launched a GoDaddy boycott, which hit the company’s bottom line so hard that they were pressured to publicly reverse their stance on the bill.

When asked about the community’s passionate effort to kill the bill, Martin marveled at the anti-SOPA solidarity amongst Reddit users. The “hive-mind” is on a one-track mission to stop SOPA – and Martin thinks that Reddit’s grassroots opposition to the bill will stop it from passing.

OPEN: Reddit Users’ Preferred SOPA Alternatives

Though the Reddit community is staunchly against SOPA, in a recent interview Martin explained that site executives – after consulting with several Internet lawyers – do support the Online Protection and Enforcement of Digital Trade Act  (OPEN) – an alternative online intellectual property bill proposed by Sen. Ron Wyden (D – OR) and Darrell Issa (R-CA).

OPEN places online piracy authority in the hands of the International Trade Commission (ITC) rather than the Justice Department. Since the ITC are already the nation’s intellectual property experts, many feel it’s better equipped to handle complex copyright issues. In short, OPEN supporters feel the bill properly targets online criminals, as opposed to average folks who are innocently ignorant of the rules.

But the Motion Picture Association of America – SOPA’s leading proponent – wants more than anything to shutdown Swedish website, thepiratebay.com.  And since OPEN would not effectively squash the popular torrent site, the MPAA is not interested.  Also, others feel that OPEN places unfair obstacles in front of individual artists and creators who most likely couldn’t afford the considerable ITC investigation and adjudication fees outlined in the OPEN bill.

SOPA is a hot Internet law issue. The next few months will prove interesting.  If you run a website or online business that you feel could be affected by SOPA, contact the Kelly Law firm for a consultation.

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