It’s most likely true that more than a few of you have heard of DMCA, as in the Digital Millennium Copyright Act. And if you’re heard of that, you probably have heard the term Fair Use thrown around as well.
According to Wikipedia, the plain English definition of DMCA is:
…it criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as Digital Rights Management or DRM) that control access to copyrighted works and it also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.
Example: If you seed a torrent of an MP3 where the audio work is owned by a record company, you could be charged with a DMCA. Why? Because you are circumventing the method in which the record company sells the song digitally, such as iTunes. You didn’t write the song; you don’t own it; you have no permission to distribute it; you cannot distribute it, period.
Fair Use is a doctrine in US copyright law. It allows you limited (keyword there) use of copyrighted material without permission of the original author.
DMCA is spelled out in such a way where it’s (mostly) not open to interpretation. Fair Use on the other hand can be interpreted in many ways. An excellent article, Fair Use in a Nutshell: A Roadmap to Copyright’s Most Important Exception, is well worth the time to read.
The best way to understand Fair Use is by citing example.
Reviews of things fall under Fair Use. If I buy a hard drive from a specific manufacturer and that hard drive fails within a month, I would write a bad review. I can name the company and brand. I can take a photo of the hard drive and show the company’s logo. None of this infringes the copyright of any intellectual property of the manufacturer.
Quotes of things with proper attribution fall under Fair Use. This happens on the internet all the time. If I read an Associated Press article and feel I can use it for my own article here on PCMech, I can quote an excerpt provided I don’t claim authorship of the quote and give proper attribution to the source (usually provided as the name of the source with an accompanying link).
Is there abuse of DMCA and/or Fair Use?
Yes. For any law or doctrine there will always be someone who will test the limits of what they can get away with and at times break those limits.
Part of the problem with the DMCA is not the law itself, but rather people’s interpretation of it. As such there are many false DMCAs claimed; that is abuse of the law.
Example false DMCA claim:
You write an original song and record it. Then you post it on YouTube. Another user takes a 10-second clip of the song, makes his or her own video, includes that clip and says you’re the worst songwriter that’s ever lived. You’re angry; you’re upset. You elect to use DMCA because you believe that user took your song without your permission.
That user didn’t need your permission. It was a review of your song that included a clip (i.e. a figurative quote) and was 100% legal to take and use.
The fact someone reviewed your song and didn’t like it does not grant you any power to take someone’s opinion away, because that someone didn’t steal anything from you.
Example of improper Fair Use:
You buy a book that is currently on the New York Times Best-Seller List. The book is a mystery novel.
On your blog, you write a review of the book and quote the last part which unravels the entire mystery, thereby ruining the story for anyone who reads your article but hasn’t read the book yet.
You are entitled to your opinion, but you’ve directly quoted something that is vital to the sale of the book. This is improper Fair Use.
You should read up and understand how DMCA and Fair Use works
You do not need to have a law degree or read hundreds of documents to understand what DMCA and Fair Use is all about. If you get the basics of how they work, you’re far better off – especially if you write your own blog and it contains reviews.
Possibly the best reason to get educated on this stuff is to know what happens if you use DMCA or Fair Use improperly. Either can get you in serious legal trouble if not used for their intended purposes. So when you make videos, blogs, etc. on the internet, it’s in your best interest to know what is and isn’t legal.
Last note: For those across the pond, your version of DMCA is called the Copyright Directive.
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Knowing and using the DCMA is a must for a Web Master to keep from having duplicate content on the web.
Search Engines (SE) take a dim view of duplicate content and in some cases will ban both web sites that are complicant in removing the duplicate content.
No indexing by the SE’s no free traffic, something to think about, I suggest you get a full copy and keep it handy incase you find some of your valuable content has been duplicated.
MHO…
I believe the DCMA is going too far and is being used to silence critics of corporations such as eBay who server a notice on my host because the site I run at ebuster,co,uk contains documents relating to wide scale fraud on eBay and as such it is important that pages that are displayed are not tampered with.
This time I had some luck since eBay picked on a fake login page I displayed after I had asked eBay on several occasions to get the page remove and from what I can understand they are upset about the eBay log at the top of the pages but it’s not like the site trying to compete against eBay and provides hundreds of links back to eBay.
The reason I present copies of pages is because eBay often remove pages where a dispute is involved so just how can anyone present case of wide scale fraud when it is becoming impossible to present evidence without have a gag order place on your host.
Yes I understand the reason for the DCMA but using it’s powers in this manor strikes at the heart of democracy and is allowing eBay to do as it pleases and in some cases it is not possible to remove the logo as some of the pages displayed on the site have been hijacked by script injection using hexadecimal code to overwrite the original page and therefore making it all but impossible to remove the eBay tm logo and no I don’t have a zillion$ to get involved with eBays lawyers but I do have freedom of speech so if that involves moving the site offshore then that is what I will do
I just want to clarify some points as this article is somewhat misleading. I do wholeheartedly agree with the author, though, in that YOU SHOULD READ UP AND UNDERSTAND HOW DMCA AND FAIR USE WORKS.
The DMCA actually has two major goals, the anti-circumvention provision you mentioned, and the one you actually ended up discussing–to alleviate ISPs and other intermediaries from a number of direct and indirect liabilities when users using their services committed copyright infringement, provided that they took certain precautionary measures. Thus, if YouTube suspects that you are infringing copyright, they may well “use DMCA” on you in that they will make remove the video, or provide information in the investigation of your infringement should it get that far (it never does). The same goes for a post-DMCA Napster-like entity; if they make the required effort to stop and/or report infringement, then they should not be liable for your breaking the law by up/downloading copyrighted material. (of course, if the service has no other recognizable purpose than to promote infringement, then…well, that is a different discussion)
The anti-circumvention clauses of the DMCA make it illegal to bypass electronic content controls (DRM), without regard to whether your use of the material infringes copyright or now. That is, even if you have a fair use claim to use/copy material from a DVD, it is still illegal to circumvent the software protections keeping you from directly copying it. (Unless, that is, you qualify under the recent DVD exemption intended primarily for educational/artistic/documentary uses: http://www.copyright.gov/1201/)
It should also be noted that fair use covers a considerably wider spectrum than your examples, which both fall under journalistic purposes (factor 1.: the purpose and character of the work), and that fair use it is a defense, not a right. That is, if accused of copyright infringement, you could then argue that your use was fair based on relative weight of the factors supporting your use were stronger than those factors against your case. There are definitely better and worse cases for fair use, but speaking literally it is never correct to say that something “is” a fair use until it has been challenged and determined legally.
I hope this helps!
Your “false DMCA claim” is, in fact, a very false DMCA claim—given your fact pattern, it has absolutely nothing to do with the DMCA at all. It seems to be a pretty good example of a fair use (which, again, is subject to determination). Definition of fair use: http://www.copyright.gov/title17/92chap1.html#107
In large part, you seem to be confusing the DMCA with “copyright.” If anyone out there is “claiming DMCA’s,” either an ISP or a software/recording/broadcasting/etc. company is going to be on one end of it. If someone else is using your copyrighted material, unless you created some sort of DRM which that person has circumvented to get to your content, the DMCA is of absolutely no use or concern to you. (However, copyright law probably is–check out the Copyright Act of 1976!)
Please, at least do a cursory reading of the law before you go about (mis)informing the public.
“…you seem to be confusing the DMCA with “copyright.”"
So the C in DMCA means “cucumber” and not “copyright.” Gotcha.
“If anyone out there is “claiming DMCA’s,” either an ISP or a software/recording/broadcasting/etc. company is going to be on one end of it.”
That’s absolutely false. Parties on either side of a DMCA-filed complaint can both can be companies, or both be individuals. There is no prerequisite anywhere that one party “must be” a corporate entity.
“…unless you created some sort of DRM…”
False again. DRM is an access control technology; you don’t “create” it at all. You use a corporate entity’s form (ex: Apple’s iTunes system) of DRM because there’s no way you can afford it. You don’t manufacture iPods.
Please, at least do a cursory reading of what access technologies are and how they pertain to copyright law before you go about (mis)informing the public.
So the C in DMCA means “cucumber” and not “copyright.” Gotcha.
The point I was making is that you are confusing the DMCA with the Copyright Act of 1976. If you had read (or understood) either, you would realize this.
“There is no prerequisite anywhere that one party “must be” a corporate entity.”
I never intended to imply that there was a prerequisite, simply that it is extremely likely to be the case. The DMCA by and large provides no redress for end users (except in defense of an action taken out against them). If your copyrighted song is being sold by iTunes’ (now defunct) DRM system and someone circumvented it, that would be their fight, not yours.