Digital Millennium Copyright Act 1998 - DMCA
The highly controversial Copyright Act of 1998 was written to be flexible. However, what it really did was criminalize for the first time copyright infringement. It granted certain rights and privileges (safe harbors) that protect Internet Service Providers which effectively prevented Internet copyright laws from being heard in a court of law.
The rapidly changing state of the Internet and technological advances, Congress sought to draft legislation that could adapt to the changing environment. To promote the "progress of science and useful arts," the U.S. Constitution provides the foundation for the Copyright Act "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
There is no act that specifically addresses the concerns of the Internet and intellectual properties. There is no distinct rules for the use of copyrighted works in Web-based and other electronic format works, as well as the handling of images, graphics and distance-learning tools.
Under the 1976 Copyright Act, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform and publicly display the work. In the case of sound recordings, the copyright has the right to perform the work publicly by means of a digital audio transmission. These exclusive rights are freely transferable and may be licensed, sold, donated to charity, or bequeathed to your heirs. It is illegal for anyone to violate any of the exclusive rights of the copyright owner. If the copyright owner prevails in an infringement claim, the available remedies include preliminary and permanent injunctions (court orders to stop current or prevent future infringements), impounding and destroying the infringing articles.
Safe Harbor Provision
The "safe harbor" law, codified in DMCA, is meant to shield Internet service providers (ISP) from liability for any copyright violations that might be committed on their clients' websites. Safe Harbor is meant to shield ISPs from liability for any copyright violations committed on their clients' websites. This law states that, upon being notified by letter or email that there is content in violation of copyright law and that they can avoid any legal consequences by immediately removing it. The reason the "safe harbor" is even necessary is because of the draconian copyright 'protections' built into the DMCA — ones, which sacrifice fair use among other things. Because the takedown notice doesn't require a court order, or any type of judicial scrutiny, it means that shady individuals can easily use the law to stifle free speech. See the example below.
Sidebar: The Problem with the Safe Harbor Provision
Mark Napier is a digital artist that uses iconic images to make political commentaries. When he used the Barbie image Mattel used the Safe Harbor law and asked the ISP to take down his site. Napier was given no choice but to remove the images. Even though his use most probably would fall safely under fair use he could not risk losing the traffic he had spent years building up. The Safe Harbor law has prevented many infringement cases from ever being tested in a court of law.
Sidebar: Steve Gibson v. Mom and Pop 2011
Steve Gibson of Righthaven, LLC, monetizes news content on the back end. Gibson trolls the Internet for the Las Vegas Review-Journal stories, taken without permission, that have been posted on mom and pop blogs, forums and WebPages. Gibson then buys the copyright to that particular newspaper story and files suit. Gibson is taking advantage of the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. He does not send a take down notice. This is in an excessively aggressive and opportunistic way of taking advantage of people who do not fully understand the fair use provision and do not have the money to launch a legal battle. Most will settle quickly.
According to the Las Vegas Sun on March 19, 2011 "an Oregon nonprofit did not infringe on copyrights when it posted without authorization an entire Las Vegas Review-Journal story on its website. U.S. District Judge James Mahan said during a hearing he planned to dismiss, on fair use grounds, a copyright infringement lawsuit filed against the Center for Intercultural Organizing (CIO), in Portland, Ore. Mahan pointed out that Righthaven sued the CIO without warning and without the Review-Journal or Righthaven asking the CIO to take down the story." The judge claimed that this is a necessary step although it has never been adjudicated before this may be the precedent for it.
The ruling does not set a binding precedent for any of the other federal judges hearing Righthaven cases, but it's likely to cause Righthaven to consider whether it wants to risk another dismissal by suing a nonprofit. For Righthaven, its biggest legal challenge at the moment appears to be a counterclaim filed by the Democratic Underground in which Democratic Underground attorneys have suggested they've found evidence undermining Righthaven's lawsuits over Review-Journal material based on allegedly "sham" copyright assignments. Righthaven has disputed that assertion.