PLEASE NOTE: Because Linden Lab, Linden Research Inc, is a US-Based company, a Delaware corporation, foreign Second Life Residents may file with Linden Lab and expect the same treatment as US-Based Residents. We encourage everyone to register for copyright on their works – this makes the DMCA process more cemented.

OVERVIEW

**DMCA
DMCA is an acronym for the phrase “Digital Millennium Copyright Act”. When we speak of “filing a DMCA” we are talking about the act of beginning a legal process in which you can have an impartial, legally bound party investigate products that violate a copyright. In the United States, we passed an amendment law in October 1998 that protects Intellectual Property, and with that, came the Digital MillenniumCopyright Act.

Digital Millennium Copyright Act @ UCLA: http://www.gseis.ucla.edu/iclp/dmca1.htm

Basic Copyright Info (US): http://en.wikipedia.org/wiki/Copyright

The DMCA criminalizes anything created that is designed as a “workaround” for measures that control access to copyrighted works. This includes the everfamous copybot, as well as the Cryolife viewer and several other programs in existence in the Second Life community. Even just the ACT of having these items is illegal – whether or not it has been used to illegally obtain material.

To read Linden Lab’s take on the DMCA, go here: http://secondlife.com/corporate/dmca.php

**Something you should know: The Berne Convention
The Berne Convention was spurred into existence by Victor Hugo’s conception of “droit d’auteur” – right of the author. The Berne Convention automatically forces copyrights for creative works instantly upon creation without being asserted or declared – the trick is, the material must exist in a PHYSICAL manner. An author/artist does not need to register or apply for copyright in countries adhering to the Convention. Please note that the Berne Convention is NOT applicable – or at least hasn’t been tried – in Virtual Worlds yet. It also does not apply to prosecution law. To find out whether your country is covered by the Berne Convention, please view the attached image.

To read more about the Berne Convention, please go to this URL: http://www.law.cornell.edu/treaties/berne/overview.html

**Online Service Providers: ISPs, Linden Lab

Online Service Providers are not bound to conform to the DMCA unless they intend to declare safe harbor against the infringing content. The “safe harbor” clause only applies if the Online Service Provider:
-Have no knowledge of, or financial benefit from, infringing activity on its network.
-Upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
-Have a copyright policy and provide proper notification of that policy to its subscribers.
-List an agent to deal with copyright complaints.
-The OSP must stop storing the material if it receives proper notice that the material infringes a copyright, or if it has reason to believe so.

Not complying with the DMCA is not illegal, but the OSP may lose their safe harbor status by not complying and will open themselves up to liabilities for hosting

If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider’s network through which they engaged in the alleged activities is not liable. The DMCA contains provisions that allow a copyright owner to force an OSP to reveal identifying information about the user who allegedly infringed the owner’s copyright, through the use of a subpoena issued by a federal court at the owner’s request.

Users must be informed of removed or disabled material. Similarly, copyright holders must be informed of the receipt of a counter-notice, and disabled material subject to a counter-notice must be enabled between 10 and 14 days after the receipt of the counter-notice.

OSPs must implement an account termination policy for repeat infringers, must inform their users of this policy, and must accommodate standard copy protection systems. Copyright owners must attest under penalty of perjury that they are indeed the owner. Counter-claimants must also attest under penalty of perjury.

If a counter-claimant files with the OSP, the OSP will replace the removed material and will cease disabling access to it 10-14 business days after receiving the counterclaim.

FILING A DMCA

Stroker Serpentine(tm), based on experience of numerous DMCA filings and a federal court case, has gathered this information that each DMCA should contain AT MINIUMUM:

—————————————————————————–
To Whom It May Concern,
This letter is a Notice of Infringement as authorized in § 512(c) of the U.S. Copyright Law under the Digital Millennium Copyright Act (DMCA). I wish to report an instance of Copyright Infringement. The infringing material appears on the Service for which you are the designated agent.

1. The copyrighted material, which I contend belongs to me and appears illegally on the Service, is the following:
[Article/Object/Image/Video] titled “[My Original Content]” [Created/Written/Designed] by [My Name], posted on [Insert Date] at [Give Location]

2. The unauthorized material appears at the [Website/Coordinates]:
[Give Location] This site appears in “[Search Results]” for “[Search Terms]” as well as other search terms.

3. My contact information is as follows:
[My Name]
[My Address]
[My Phone]
[My Email]

4. I have a good faith belief that use of the copyrighted materials as described above is not authorized by the copyright owner, its agent, or the law.

5. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
[Your Signature]
[Your Name Printed]

——————————————————————————-

Rebel Hope has also said, “Follow every single step exactly or they (LL) will kick the DMCA back to you saying it doesn’t show enough information to “remove” content.” So please, make sure you read Linden Lab’s DMCA process and follow it exactly. http://secondlife.com/corporate/dmca.php

**NOTE: You must SEND your claim in to Linden Lab either via fax or snail mail. They will not accept electronic claims.

Many OSP’s require additional information such as links to images, description of objects or potentially infringing account names. Check with your OSP’s DMCA /Copyright Agent or website to ensure you meet their additional requirements. The more information you provide to help the OSP identify/locate the infringement the better. Electronic signatures (email) are acceptable as legal affirmation.

The DMCA Agent should promptly acknowledge receipt of each infringement claim. DMCA (512)(c)(3)(B)(ii) requires that if the claim fails to comply substantially in supplying information, the service provider should promptly attempt to contact the person making the notification or take other reasonable steps to assist in the receipt of notification that substantially complies.

Note: The DMCA is a LEGAL document. It requires specific personal information and a statement of fact under penalty of perjury. In the U.S. the penalty statute under Federal law (DMCA) provides for a prison sentence of up to 5 years. Do not take this matter lightly.

GATHERING INFORMATION

As mentioned above, many OSP’s require additional information. Do yourself a favor and gather as much information as you can, as quietly as you can. If council is required to determine stolen content, pick two trusted, impartial, silent, eagle-eyed friends to assist you.

**You will need to, according to Linden Lab:

1. Identify in sufficient detail the copyrighted work that you believe has been infringed upon (i.e., describe the work that you own). (Include screenshots that have creation date, inspection info, etc, of both the original and the stolen item! Clearly label both.)
2. Identify the in-world item that you claim is infringing on your copyright, and provide information reasonably sufficient to locate the item in-world. For example “The allegedly infringing work I am referring to is located on the map area labeled ‘Freelon, 104,30,56′.”
3. Provide a reasonably sufficient method of contacting you; phone number and email address would be preferred.
4. (Optional) Provide information, if possible, sufficient to permit us to notify the user(s) who posted the content that allegedly contains infringing material. You may also provide screenshots or other materials that are helpful to identify the works in question. (This is for identification only, not to “prove” substantive claims.)
5. Include the following statement: “I have good faith belief that the use of the copyrighted materials described above and contained on the service is not authorized by the copyright owner, its agent, or by protection of law.”
6. Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
7. Sign the paper

IF IT DOESN’T WORK?
Then you have to decide if you want to hire a lawyer and get serious. If you earn a sizable income off of your creations, you may want to persue the case. Beware, however, the US Court system moves at a snail’s pace, and you will be required to register for copyright on your item. You have up until, should you choose to persue it, your court date to register for copyright, but waiting until the last minute is not recommended.

Stroker Serpentine(tm), in his breakdown of the DMCA process, also mentioned the drawbacks.
“As mentioned above litigation can be costly. You should weigh your decision to pursue litigation carefully. Perhaps a letter from an attorney requesting a Cease and Desist is enough to stop the infringement. Consult an IP attorney for professional advice.

One particularly nasty tactic is to use the DMCA as a weapon. Say a competitor files a frivolous DMCA against you even though they do not own the copyright. If you counter-claim to assert your rights the competitor is then supplied your personal information providing them with your name and address. One way to counteract this prospect is to incorporate and use a P.O. Box as your legal address. A corporation or company can own the rights to a copyright if you register them that way. Using multiple fake names and takedowns it is possible to even get you banned from a service. Contact the OSP and provide them with all your evidence to appeal their decision.

Another area of contention (and considerable litigation) is that of “Fair Use”. Section 107 of copyright law contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1.The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2.The nature of the copyrighted work
3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4.The effect of the use upon the potential market for, or value of, the copyrighted work

Parodies, documentaries, transformative works and critical reviews have garnered “Fair Use” protection in the past. Direct and willful replication and distribution for financial gain is rarely considered “Fair Use” by the courts.”

Read more on Fair Use: http://www.copyright.gov/fls/fl102.html http://en.wikipedia.org/wiki/Fair_use

I hope this short tutorial assisted and educated you. If you need more help with any of this, please feel free to contact the Artist’s Voice group.