DMCA proof Internet law still evolving

St. Louis Daily Record & St. Louis Countian, Aug 29, 2003 by Emily Umbright

In the world of digital intellectual property, the law still struggles to keep up with Internet technology. Precedents continue to be set based on the interpretation of 1998's Digital Millennium Copyright Act, creating a face-off between copyright and First Amendment protections and raising questions about just how far these interpretations extend to protect or prosecute Internet users.

The Bar Association of Metropolitan St. Louis presented a continuing legal education seminar on the DMCA and its relevance to intellectual property lawyers last week. Speaking at the lecture were Professor Charles R. McManis of Washington University School of Law and attorneys Mark Sableman and Charles Fendell of Thompson Coburn.

McManis began the seminar with a synopsis of the DMCA, focusing particularly on Section 1201. The section deals with the circumvention of copyrighted material. It states that a person cannot manufacture, make public or provide technology, services or devices created for circumventing technology that controls access to a public work or was created to protect the copyright owner against circumvention.

Even if a technology has a substantial non-infringing use, if its primary purpose is an infringing purpose, then the creator of that technology will be creating to contributory circumvention, he said. If you can show any substantial non-infringing use of the technology copyright law, you can basically avoid the contributory infringement.

The act incorporates certain rights that are not affected by the section, including remedies, limitations and infringement defenses such as fair use. However, McManis believes the mentioning of fair use in the section is slightly misleading.

The defense of fair use has absolutely no relevance to an anti- circumvention or contributory client, McManis continued. In other words, if you contribute a technology which enables a person to get access to a work to make fair use of it, it is still a violation of this act to circumvent.

Through discussing the ways in which the act applies to real life, Fendell shed light on some of the types of copyright infringement as well as the ways a person can be protected against allegations.

I think there's a tendency that lawyers read this and think it applies to large Internet providers like AOL and MSN, he said, and don't think that it won't apply to a local business here that's not an 'Internet service provider.' That's an incorrect assumption.

Using the BAMSL Web site as an example, Fendell assumed it had a page designated as an open forum for people to post information, which an anonymous person used to post an article. If the original author discovered his article posted on the site and wanted to know who posted it or wanted compensation for the article, Fendell said the author could sue the bar association, in addition to the person who posted it, for copyright infringement because it was the Internet service provider.

This is the kind of problem Internet service providers faced before the enactment of these provisions, he said, because if the bar association is going to be liable for that, they wouldn't have that kind of forum.

Fendell said that there are three different types of infringement: direct infringement, meaning the site reproduced a work and publicly displayed it; vicarious infringement, in which the infringing is controlled by the Web site -- with or without its knowledge -- and it received financial gain; and contributory infringement as applied in the BAMSL example.

The author may write the Internet service provider a letter requesting the material to be taken down. However, as Fendell illustrated, a problem arises for the owners of the Web site if everyone who had something posted wanted it removed. To provide a solution to this problem, the DMCA included Section 512(c)(3), which must be noted in a letter to an Internet service provider when writing a request to take down the material.

Problems for lawyers who write a letter and don't do it in accordance with this provision because they are not familiar with it could be held for malpractice, Fendell said, using the BAMSL example, because you're not putting BAMSL on appropriate notice.

What it's intended to do is insulate the service provider from being inundated by responses, he said.

In addition to the section citing, the letter must also include identification of the infringing material, contact information of the complaining party and a statement by the complaining party explaining how the party has a good faith belief that the work is not authorized by the copyright owner.

This is a much higher standard than the typical demand letter that you might write, he said.

Section 512 of the DMCA provides safety nets for the service provider. Based on the conditions that the service provider had no prior knowledge of the infringement, did not receive financial gain from the material, removed the material and had user agreement requirements -- which inform users about the site's policy including termination of subscribers who repeatedly infringe on copyrighted material -- posted on their Web site, the service provider cannot be held liable for copyright infringement and can avoid lawsuits.