Software Copyright – Digital Millennium Copyright Act (DMCA)

In 1998, President Bill Clinton signed into law the “Digital Millennium Copyright Act.” Sometimes called DMCA, it is also known as PL105-304. This was a significant addition and support for copyright law for several reasons. It clarified some complicated issues for users and offered international protection for owners of software copyrights.

Part of DMCA included a requirement that the law be re-authorized every three years. This requirement reflects the fact that technology is changing at a rapid place. Owners of copyrights for software will need new protections to protect them from new challenges, and software users will benefit from having important issues clarified. For example, the 1998 authorization explicitly states that people may make backup copies of software to facilitate computer maintenance (MSCU).

The most recent re-authorization of DMCA is called “TEACH,” for “Technology, Education, and Copyright Harmonization.” This re-authorization addressed specific new issues, including transmissions of performances, which relates to distance online learning, and the use of copyrighted information in educational displays (NCSU).

One example from DMCA illustrates the need for a law constructed to respond to the rapid nature of technological changes. Previous copyright laws did not address the issue of people who devise ways to circumvent protections software manufacturers might put on their software to prevent copying. DMCA specifically prohibits bypassing such programming to make unauthorized copies of digital material, including software.

Pirating,” or obtaining licensed software without paying for it, has been a major concern for software manufacturers. The provisions in DMCA were followed by the “Digital Theft Deterrence and Copyright Damages Improvement Act of 1999,” HR 3456 (ARL). This law increased fines for pirating software.

TEACH, which was passed in November of 2002, contains recommendations made by the United States Copyright Office, and specifically addresses complications regarding fair use stemming from the growth of distance learning, or taking classes over the Internet without physically attending the university doing the instruction.

While it would be easy to see these laws as putting restrictions on software users, some experts feel that TEACH broadens their choices for online education. However, it does also clarify use limitations. In the long run, most educational institutions want to work within the bounds of the law. The clearer the law is, the more certain they can be that their usage is within legal use. One requirement in TEACH clarifies the need to use copyright notices. Under TEACH, schools must credit not only contributors to information but the software as well. So, for instance, if an online history course uses information compiled from a variety of books and other publications, they must cite those sources. But in addition, they must cite the program used to present the information. If they use PowerPoint, they must acknowledge the use of that program (ARL).

These requirements are in addition to laws and regulations previously on place. The laws are intended to give software publishers the same protections text publishers have. Just as it is illegal to photocopy textbooks to avoid buying published copies, schools cannot copy software for use on multiple computers unless they have purchased a multiple-use license. Then, they must restrict the number of copies to the number authorized in their purchase. They may not install personal copies of software they purchased for home use on a school computer; or make copies of school-owned software for either home use or to share with parents and students.

In addition, the laws address the use of shareware. Sometimes people think of shareware as “free,” but it is not, and schools may not use shareware beyond the date at which the shareware copyright owner demands payment. In addition, although freeware is free in that the school does not have to pay for it, the law states that people may not sell freeware. Schools are not likely to do that, but they also cannot alter the freeware for any kind of commercial purpose, even if their goal was to support educational goals in some way (Education World).

The cumulative effect of these laws require that schools (as well as everyone else) use commercial software only in those ways strictly supported by the school’s sales or licensing agreement. However, the application of these laws is often situational – that is, circumstances may determine whether copying some software is “fair use” or not. Thus, a school can make copies of a word processing program for limited home use by teachers if using that software is integral to school functioning and if teachers complete some of that work at home. Teachers may not, however, make a copy of a program simply because they would like to have it for personal use at home. This distinction may be lost on teachers if they are simply handed copies of software owned by the school with no explanation of why those particular copies are legal when others might not be (Education World). All of these laws continue to allow schools to make archival copies of software – backup copies to be used only if they need to erase and resinstall the software for some reason.

School libraries have additional concerns regarding the software used on library computers when those computers will be used by students and staff as well as library personnel.

No doubt some educators find the laws complicated and cumbersome, but this reflects the complex nature of regulating rights in an area that grows and changes so rapidly. If schools are going to use computers, they must accept the requirement that they do so honestly and without violating the rights of those who created the software they use.

Bibliography

Association of Research Libraries (ARL). “A History of Copyright in the United States.” Accessed via the Internet 6/2/09. http://arl.cni.org/info/frn/copy/timeline.html#20C

Education world. “Applying Fair Use to New Technologies.” Accessed via the Internet 6/2/09. http://www.education-world.com/a_curr/curr280d.shtml

Minnesota State Colleges and Universities (MSCU). “Copyright Law/History,” in Intellectual Property and Copyright. Accessed via the Internet 6/2/09. http://copyright.mnscu.edu/introduction.htm

NCSU. “The TEACH Toolkit.” Accessed via the Internet 6/2/09. http://www.lib.ncsu.edu/scc/legislative/teachkit/

North Carolina Conference of English Instructors (NCCEI). “Copyright and Fair Use Guidelines for Teachers.” Accessed via the Internet 6/2/09. http://www.nccei.org/blackboard/copyright.html

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Digital Millennium Copyright Act

It was in the year 1998, in the month of October that the Digital Millennium Copyright Act was passed by the U.S. Congress after much deliberations and controversy. It would be another two weeks, October 28th to be exact, that the Act became a Law. The law was signed by the then President, Bill Clinton. The law was approved and also supported by the entertainment industry as well as the software industry. However, there was a lot of disapproval in the fields of academicians and scientists and other learned people, which was in fact unavoidable. The Law supports the treaty that had been signed in December 1996 at the World Intellectual Property Organization at Geneva but also contains further materials that were added on at a later date. (The Digital Millennium Copyright Act)

Some of the provisions of the Digital Millennium Copyright Act are as follows: It is considered a crime to circumvent the copyright or anti-piracy measures that are built into all commercial software of today. The fact that software can be illegally copied and distributed by a set of people who can actually crack the codes that protect this software is also dealt with. Those persons who manufacture or sell or copy and distribute these codes will be severely punished. However, in certain cases, like for example, when software has to be assessed or tested for the extent of security offered by the codes, or to conduct encryption research, cracking the code is legally allowed. Likewise, certain sets of people are allowed to circumvent copyright and anti-piracy laws. These people may be academicians, or be in charge of a free library, or run an educational institution. (The Digital Millennium Copyright Act)

Internet service providers are also exempted in certain cases from the same laws since they are required to simply provide information to large numbers of people who request such information over the Internet. The Internet service providers however, are permitted or even expected to remove such material as they find infringing on copyright laws from user’s web sites. In cases where institutions of higher education serve as Internet service providers for their students and teachers, then they would be exempted from the anti-piracy and copyright laws too. ‘Web casters’ are required to pay a licensing fee to the record companies whose music is being used by them. The Register of Copyrights is expected to, after consultations with the relevant persons, submit a list of recommendations to the Congress about the possibility of promoting long distance education through the use of digital technology, while at the same time ensuring that the potential users do not infringe upon the rights of Copyright owners. (The Digital Millennium Copyright Act)

The concept of selling products using the Internet was created by Pierre Omidyar in 1995 when he launched his website ‘Auction Web’. The consulting firm, Echo Bay Technology Group, owned this site and when Omidyar tried to launch the site under the name of ‘Echobay.com’ and found that there was a site of this name already in existence, he launched the most popular and most widely used website all over the world, the ‘eBay’. This is essentially an online auction website where people from all over the world can buy or sell either their goods or their various services. The site has been referred to as a worldwide yard sale or a garage sale where all sorts of items like, for example, appliances, dolls, knick-knacks, and collectibles are all sold off with the ease of a backyard sale. However, all credit goes to the website eBay for it has served to bring together people who want to buy or sell anything and everything, from any corner of the world. Certain big Companies like the IBM also use this site to announce their latest products and offer them on auction to the highest bidder. (Ebay)

Large amounts of revenue are generated by the eBay, as sellers have to pay a 1.25% to a 5.25% premium on the final price of the item that they are selling, and also from Advertising. Risks taken by the site are at a minimum, since there is no direct handling of goods being bought or sold, and payments do not take place between the two parties anywhere at the site; payments are handled by eBay’s subsidiary, PayPal, and every transaction is based on good faith alone, much like newspaper advertisements announcing sales where buyers depend on the sellers’ good faith to get the goods delivered, and the sellers depend on the buyers’ good faith to pay the required amount. It is for this purpose that eBay openly publicizes all the post transactions that take place between the buyer and the seller on its website. The result is that the buyer can openly examine the credentials of the seller and then make his decision regarding the purchase. Generally, the sellers who have earned a higher rating are able to garner higher bids for their products. (Ebay)

Ebay being such a public website where thousands of people buy and sell everyday, certain regulations and policies regarding protection of the rights of the users of the site are indeed necessary. Some of these policies are: the ‘eBay User Agreement’ that enunciates the terms and conditions under which the services of the site would be made available to the user. The ‘feedback’ policy which encourages buyers to leave their feedback about the transaction on the website for the perusal of future buyers is a well protected one. The seller through the ‘feedback removal’ policy can remove unwanted and also unwarranted remarks on the sale, and feedback can be solicited for future use through the ‘feedback solicitation’ policy. The ‘rules for everyone’ policy has been written for the safety and enjoyment of all those who participate in the eBay experience. This includes sellers, buyers, employees, and board members. (Ebay Policies) Employees are permitted to sell or buy any products on the site, as would an ordinary seller or buyer, and are not allowed to use the Company name in their private dealings. The Company is not liable for improper use of the Company’s name and such actions, if discovered, would be punished severely. (Ebay Employee Trading Policy)

EBay also does not hold itself liable for the use of profanity or improper language on its website, even though eBay strictly prohibits the use of profanities and racist, sexual, or obscene language on its site, and promises severe punishment for violators. (Profanity) In the same vein, the senders of unsolicited spam (e-mails) by employees, of a commercial as well as of a non-commercial nature to users of the website will be punished. (Unsolicited Commercial Email (Spam)) The privacy of the user of the website eBay is well protected through the ‘Privacy Policy’, which details the assurance from the Company that the name or address of the buyers or sellers using the site will not be sold to any third parties for their own marketing purposes, without the proper consent of the concerned person. (EBay Privacy Policy)

In addition, eBay being a site of such a public nature, extreme care is taken that the Company keeps member’s or users’ identities strictly confidential. Misrepresentation of identity is strictly forbidden, as members may use the identity of employees or vice versa, and this would lead to a multitude of problems in the authenticity of the site. For example, sometimes requests are made for revealing the passwords and identities of members, and the Company may not have sent these requests. In such cases, there is an ‘Email and Websites Impersonating eBay’ policy to take care of the security of users. In addition, the ‘ID Verify’ policy takes utmost care to ensure that the identity and the contact information of the buyer and seller are cross-checked and verified by a third party, online. (ID Verify)

Ebay has made up a separate set of rules for the buyers using the site, as well as for the sellers using it. The buyers are expected to follow these safety rules so that there is no problem in the transactions taking place online. The buyer, for one, is not permitted to interfere in any transaction taking place between other members when he is trying to finalize his own. He is also not permitted to offer to purchase any product that has been listed outside of eBay, and is also not permitted to warn members away from any item that is being sold. Retraction of a bid is not allowed and if he were the highest bidder, then he would be obligated to pay the price offered. In this way, the buyer’s rights are protected. The seller is also assured of safe and problem free transactions by eBay by a series of policies. A ‘listing policy’ ensures that an item to be sold conforms to the existing community standards and guidelines. Violation of these particular standards may result in the imposition of a ban on the seller, and finally, even a suspension from selling anything using the eBay. (Rules for Sellers: Overview)

The ‘Tax Policy’ makes sure that a seller would follow all the rules and regulations that are in existence about using eBay and its services, and also act according to the listings that have been elaborated in detail for the seller to follow. (Tax Policy) Ebay also makes sure that the seller is aware of the rules and regulations concerning selling a particular product in a particular country, outside their own. Generally, most of the paperwork is filled in by the postal service that ships the item to the buyer, but the seller must do a fairly thorough research on the laws of that country. In the case of a small item being shipped to a high bidder, there would be no problem, whereas in the case of bigger items it is wiser to follow all the rules in the book, like for example, legal compliance in both countries, and the application of special licenses for certain products that cannot otherwise be shipped out of the country. (International Trading-Sellers) Likewise, certain countries like Cuba, Iran, North Korea and Iraq are banned from being able to export any items from the U.S. (Embargoed Goods, Prohibited Countries)

In some ways eBay certainly holds itself liable for the proper conduct of all its members and provides security and safety to those who use its services. The various policies of the Company regarding these issues are rigorously upheld and violators are punished in a manner that ensures non-repetition of the mistake committed. The question of ‘bootlegging’ is an entirely different matter that, though adequately controlled by the Company, goes on in disguise. There has been a lot of criticism of eBay regarding bootlegging where some people go to the extent of stating that eBay has actually been encouraging the theft and piracy of music and related products through its lax attitude. For example, Michael Black in the Asbury Park press dated 5 June 2004 insists that there has been a large volume of sales of bootlegged CDs as well as DVDs that is almost unnoticed by the watchmen of eBay. He states an example of the sale of Bruce Springsteen’s DVD which turned up at the auction about 88 times. Most of these sales, states Black, are from bootleggers. The latest technology available wherein a CD can be copied and sold within minutes is responsible, as is the Company that encourages such sales (eBay)

He also says that eBay was a responsible enough company that protected adequately the rights of the artist, but it is no longer so. The site, he says, is actually flooded with offers of CDs and DVDs on sale when the fact is that the site is truly meant for auctions and not for sales. The copies of an album may be made from recordings made at the site of the concert by hidden recorders, or even by illegal copies of as yet unreleased albums. Michael Black says that these items are proudly displayed on eBay despite the eBay police being aware of the fact that these are bootlegged materials. He then states the eBay does nothing and takes no action on reports of such thefts and illegalities; an automatic generated response thanks the person who has reported the crime and that is all. This practice of bootlegging is unhealthy and criminal and has to be stopped immediately, he says. (EBay helps bootleggers steal)

Another writer says that eBay is a site where all manners of thieves and con artists and bootleggers and swindlers are allowed to ply their trade without any restraints. Though this may be an exaggeration, there is some truth in it because the writer says that there is no easy way to file a complaint against bootleggers and the process is so tiresome that one would generally give it up midway. He also promotes the use of some other sites similar to eBay, which, he feels is better at security than eBay. These are ‘MusicStack’ and ‘eRock’. (My Newest Reason for hating eBay) The DMCA strictly states that the offences of fixation and trafficking in music videos of performances by musicians is a serious crime, and the offenders will be punished with a prison term of not less than five years the first time, and if repeated, with a prison term of ten years. (Unauthorized Fixation of and Trafficking)

The DCMA also states that all persons who use any device that would store digital information would have to compulsorily have it fitted up with a government approved anti-piracy device, and if this were not done, the punishment would be a lengthy prison term. There are criticisms for anything and everything and the writer Jeremy Sapienza asserts that this results in the customer paying more, and that’s all. He feels that this law is nothing but a means for the government to make more money because it intrudes into your privacy to pass a law that has to be followed blindly. In short, he says, the government actually ends up owning private property and jailing a person for making some small alterations to something, in this case, a computer, owned by him, privately. He goes so far as to say that the ‘napster’ belongs in a dustbin. (The Real Napsters)

The writer was talking about the amicus curiae brief passed by the U.S. government, Department of Justice in September 2000 for the case of A&M Records vs. Napster wherein Napster Inc. was excused from the laws of copyright infringement. (Computer Crime and Intellectual Property Section) Napster was considered by some to be the veritable equivalent of a person walking into a music shop and walking out with a whole lot of CDs, and when a rule forced it to shut down, everyone was able to relax in the fact that there would be no more infringement on copyright laws. However, feel some that was the very day when free music all over the world died. Though Napster was killed, the resulting influx of new and latest methodologies of ‘file sharing’ is even worse than the original napster. What, then, has been achieved by this ban on Napster to protect the entertainment industry from illegal piracy and infringement on copyrights? The answer is, nothing. It has, in fact, led to more innovative infringements. (Morpheus 4.1)

Morpheus is similar to the Napster in that it allows users to share files over the net with millions of users by connecting to users of programs such as Kazaa, eDonkey, and iMesh. (Morpheus 4.1) Kelly Truelove and Andrew Chasin write in O’Reilly.com on 7 February 2001 that all the previous users of Napster would eventually have to go elsewhere for sharing their numerous files. This place is the Morpheus network of millions of simultaneous users that, they claim, has far surpassed Napster as well as Gnutella and Lime Wire. The Morpheus- KaZaA network has served its purpose well, they say. The fact that Morpheus does not maintain a central content has paved the way for it to be free of a troubling and irritating filtering of its content. Napster would only support the file sharing of MP3 audios, whereas Morpheus supports the sharing files of audio and video and images and document files. Metadata is used to describe the contents of the files, while Napster would merely allow a centralized search. (Morpheus out of the Underworld)

While it is true that the Digital Millennium Copyright Act managed to exercise tight control over file sharing software such as Napster, and also ensured the security of those whose copyrights would be infringed upon by others, it is at a loss when it comes to dealing with complaints about certain auction sites such as eBay which encourage people from all over the world to buy and sell their products over the Internet through cyberspace. For example, in the case of Hendrickson vs. eBay, the ‘safe harbor’ provision of the DMCA protects the eBay from being held secondarily responsible in any way for the selling of a pirated film ‘Manson’ on its website. While this case may have been a simple one, there have been others that are not as simple. However, the outcome of this case is that it came to be recognized that the DMCA is essentially focused on building and developing better e-commerce and related fields within the U.S.A. The ruling of the DMCA in the case of Hendrickson vs. eBay that stated that eBay would not be held responsible for the sale of illegal products on its site also provided relief to eBay which thereafter came to be recognized as a qualified ‘Internet Provider’. (Cyberspeak)

This act also served to provide good incentive and encouragement to such service providers and also copyright owners so that they would want to willingly report any infringements of copyrights to the courts without fear of being trapped and penalized for something that they are not responsible for. The Judge who ruled the case, Judge Kelleher, also stated that there was no doubt about the fact of eBay being a service provider within the meaning of the DMCA, and that the definition of a service provider that had been written by the DMCA was being met accurately and adequately by the eBay. In addition, the Judge said that at least one of the criterions for the infringement of copyright laws was that the Company would have had to take action against any complaints regarding this issue. This had, in fact, been done by eBay, and there was no mistake being committed by the Company in this regard. Therefore, the Judge ruled, eBay could definitely be regarded as an Internet Service Provider. (Cyberspeak)

References

Black, Michael. (6 May, 2004) “EBay helps bootleggers steal” Retrieved at http://www.app.com/app/story/0,21625,958577,00.html. Accessed on 23 August, 2004

Computer Crime and Intellectual Property Section” April 29, 2004. Retrieved at http://www.usdoj.gov/criminal/cybercrime/ippolicy.htm#VIIIIdAccessed on 23 August, 2004

Cyberspeak: EBay not liable for auction of pirated movie” Retrieved at http://www.usatoday.com/tech/columnist/2001/09/13/sinrod.htm. Accessed on 23 August, 2004

Ebay” Retrieved at http://www.wordiq.com/definition/EBayAccessed on 23 August, 2004

Ebay Employee Trading Policy” Retrieved at http://pages.ebay.com/help/policies/everyone-employee.html. Accessed on 23 August, 2004

Ebay Policies” Retrieved at http://pages.ebay.com/help/policies/hub.html. Accessed on 23 August, 2004

EBay Privacy Policy” Retrieved at http://pages.ebay.com/help/policies/privacy-policy.html. Accessed on 23 August, 2004

Embargoed Goods, Prohibited Countries” Retrieved at http://pages.ebay.com/help/policies/embargo.html. Accessed on 23 August, 2004

Identity: Overview” Retrieved at http://pages.ebay.com/help/policies/identity-ov.html. Accessed on 23 August, 2004

ID Verify” Retrieved at http://pages.ebay.com/help/policies/identity-idverify.html. Accessed on 23 August, 2004

International Trading-Sellers” Retrieved at http://pages.ebay.com/help/policies/seller-international.html. Accessed on 23 August, 2004

Kelly, TrueLove; Chasin, Andrew. (2 July, 2001) “Morpheus out of the Underworld” Retrieved at http://www.openp2p.com/pub/a/p2p/2001/07/02/morpheus.html. Accessed on 23 August, 2004

Morpheus 4.1″ Retrieved at http://www.morpheus.com/. Accessed on 23 August, 2004

My Newest Reason for hating eBay” Retrieved at http://www.rockshoppe.com/ebaysucks.html. Accessed on 23 August, 2004

Profanity” Retrieved at http://pages.ebay.com/help/policies/everyone-profanity.html. Accessed on 23 August, 2004

Rules for Buyers: Overview” Retrieved at http://pages.ebay.com/help/policies/buyer-rules-overview.html. Accessed on 23 August, 2004

Rules for Sellers: Overview” Retrieved at http://pages.ebay.com/help/policies/seller-rules-overview.html. Accessed on 23 August, 2004

Sapienza, Jeremy. September 14, 2001. “The Real Napsters” Retrieved at http://www.lewrockwell.com/sapienza/sapienza45.html. Accessed on 23 August, 2004

Tax Policy” Retrieved at http://pages.ebay.com/help/policies/seller-tax.html. Accessed on 23 August, 2004

The Digital Millennium Copyright Act” (8 February, 2001) The UCLA Online Institute for Cyberspace Law and Policy. Retrieved at http://www.gseis.ucla.edu/iclp/dmca1.htm. Accessed on 23 August, 2004

Unauthorized Fixation of and Trafficking” June 22, 2000. Retrieved at http://www.usdoj.gov/criminal/cybercrime/18usc2319A.htm. Accessed on 23 August, 2004

Unsolicited Commercial Email (Spam)” Retrieved at http://pages.ebay.com/help/policies/rfe-spam-ov.html. Accessed on 23 August, 2004

Warner, Melanie. “The New Napsters” Retrieved at http://www.fortune.com/fortune/personalfortune/articles/0,15114,370121,00.html. Accessed on 23 August, 2004

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