Stemming the tide of DMCA abuse

copyright-symbolTo protect web-based services providers from liability for infringing content that is uploaded by users of their services, the Digital Millennium Copyright Act has established a set of notice-and-takedown-procedures. The Act provides that if a service-provider complies with DMCA requirements, it is insulated from liability for contributory infringement when a user uploads infringing content without the provider’s knowledge. To qualify, the provider must, among other things, promptly remove or disable access to content upon receiving a proper notification of a claim that it infringes a copyright.

Because of the ease with which this provision may be invoked, it is frequently abused as a way to suppress information and opinions even when no infringement has actually occurred. Google, for example, claims that a very large portion of the millions of DMCA notifications it receives every year are unfounded.

The Act provides for a cause of action against any person who knowingly makes false or misleading statements of fact in a take-down notification. Although attorney fees and damages are recoverable, this provision is not often invoked because most service-providers, bloggers and other website-service users do not find it worth the time, expense and effort to “make a federal case” out of this sort of thing. Instead, they usually take the hit, remove the content, and move on.

Until recently, that is.

In August, 2013 a student journalist named Oliver Hotham published an interview with Nick Steiner, the press officer for Straight Pride UK. That outfit had sent the interview to him in a document titled “Press Release,” which he then proceeded to publish on his WordPress blog. The blog post was clearly more sympathetic to LBGT rights than to Straight Pride UK’s cause. Straight Pride UK then used the DMCA’s notice-and-takedown procedure to try to force Automattic (the company that runs WordPress) to remove the interview. Automattic decided not to roll over this time. Instead, it initiated a lawsuit against Straight Pride UK alleging it was guilty of misrepresentation in connection with a take-down notice. This year, a district court in California entered judgment against Straight Pride UK for $1,860 damages and $22,264 in attorney fees.

Although the amount of the recovery is not significant, it may be hoped that it will serve as at least a small deterrent against the widespread abuse of the DMCA’s notice-and-takedown procedure to censor the free flow of ideas and opinions on the Internet.

Is Fixing Your Car Copyright Infringement?


(Photo: T.Voekler (Own work) [CC BY-SA 3.0 ], via Wikimedia Commons)

At one time in the not-so-distant past, a car was a relatively simple machine. Owners could easily do a lot of the repair and maintenance work themselves. Technological advancements have changed all that. Today, cars rely on a complex cyber-network that controls everything from steering, acceleration and braking to opening and closing doors and windows.

Throwing a monkey wrench into this development is the fact that a computer program is a form of intellectual property that is protected by copyright. Among other things, this means that only the copyright owner – not the car owner or his mechanic — may make modifications to the computer programs that are installed in the car. It also means the car manufacturer may take measures to prevent owners from “tinkering” with the computers that are installed in their cars. To protect the rights of copyright owners, Congress has enacted an anti-circumvention statute that prohibits even a lawful owner of a product in which a copyrighted work is embedded from disabling those measures. The statute is enforceable both civilly and criminally, and the penalty can be as much as a half million dollar fine and 5 years in prison for a first offense.

Reverse engineering is permitted for the purpose of “identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs.” This would not apply to most auto mechanics and do-it-yourselfers.

As scary as all this may sound, though, the anti-circumvention law is not really as big a problem for auto mechanics as some have imagined it to be. It doesn’t mean you can’t do any repair work on a car at all. Copyright law only protects intellectual property. It generally does not protect the physical property in which the intellectual property is embedded. Destroying a book, for example, does not violate the copyright owner’s rights, nor does it have the effect of destroying the copyright. By the same token, totaling a car, or replacing a headlight or a brake pad on it, would not infringe the copyright in the computer program. The copyright owner’s exclusive right to make modifications (“derivative works”) is limited to the computer program itself, not the entire car.

Software licensing is the bigger threat to consumers and independent mechanics. General Motors already requires purchasers to sign license agreements for use of GM’s telematics and infotainment systems. In theory, it could do the same thing with respect to all of the computerized components that are needed to make your car run. Licenses may be drafted to prohibit sub-licensing and assignments. That could be a real problem for a car owner who wants to sell his car, or who wants to allow a friend or family member to drive it.

Whether a car manufacturer would find it beneficial to include such terms is not known. It is very possible, though, that car companies could begin requiring buyers to enter into licensing agreements that condition a driver’s use of the software upon an agreement to only bring the car to a manufacturer-authorized technician for service.

Car companies have quite a bit of bargaining power in this respect. Cars have become inoperable without the necessary software. The power to prevent buyers from allowing others to drive the car, or to sell the car, or to have anyone but a dealer or a manufacturer-authorized service technician repair it, gives big car companies considerable leverage to insist on whatever terms they would like in purchase agreements.

The issue is complicated by consumer protection and safety concerns. If copyright limitations are lifted so that car buyers can modify the programming, then buyers of used cars could end up purchasing cars with altered programming. Some such alterations could be dangerous, yet not readily apparent — such as a disabled airbag.

For this and other reasons, it is difficult to predict what the Copyright Office will do. It is currently reviewing comments. A decision is expected in July.

Unfortunately, the source of the Copyright Office’s rule-making authority in this instance is limited to the anti-circumvention statute. It does not have the power to issue a rule preventing car manufacturers from dictating onerous software licensing terms to customers.

Congressional action to clarify this aspect of the law and to protect consumers and small businesses could be helpful.