DMCA Handbook for Online Service Providers, Websites, and Copyright Owners

By Connie J. Mabelson

Published by American Bar Association. Section of Intellectual Property Law.

KF 3030.1 .M33 2018

Enacted in 1998 as the Online Copyright Infringement Liability Act, the Digital Millennium Copyright Act (DMCA) protects online service providers (OSPs) from contributory copyright infringement in connection with the transmitting, caching, storing, or indexing of online copyrighted content. Within the DMCA are four safe harbors that give immunity to OSPs from monetary damages resulting from copyright infringement. Of course, some things are easier said than done. That is where attorney Connie J. Mabelson and her book DMCA Handbook for Online Service Providers, Websites, and Copyright Owners come in to save the day. Mabelson explains all that OSPs need to know about acquiring the immunity and protection promised by the DMCA in the event that the OSP, either knowingly or unknowingly, transmitted, cached, stored, or indexed infringing content on its servers. She begins, though, with the basics. She defines an OSP and what qualifies as a service provider, whether it be a website, a search engine, or a host of other providers of online content. She then provides an overview of the content protected by copyright law, how such content can be infringed upon, specifically in an online environment, and the affirmative defenses that an alleged infringer may assert in a suit for copyright infringement.

Mabelson reminds us that OSPs can limit their liability for claims of contributory or vicarious copyright infringement through the application of the safe harbors set forth in the DMCA. These safe harbors exist for transmitting, caching, storing, and indexing online content. However, the safe harbors can only be used if the OSP is eligible and if the OSP followed the process specifically laid out in the DMCA, including the take-down process. The author also includes some sample forms, such as take-down notices and letters to alleged infringers.

Whether you are a website owner, copyright owner, or content creator, you will want to read DMCA Handbook for Online Service Providers, Websites, and Copyright Owners for a clearer understanding of the DMCA, its requirements, and its protections.

Facial Recognition, Biometrics, and the Law in Texas

Starting in December of last year, social media was full of more selfies than usual. That's when the Google Arts and Culture app launched its image-matching feature. Here's how it works. A user opens the app, finds the "Is My Portrait in a Museum?" prompt, and snaps a selfie with her camera. The image is uploaded into the Google cloud which then works its Google magic to find her doppelganger in a vast collection of digitized paintings culled from museums throughout the world. All of this sounds like a fun and harmless diversion, and, indeed, the app's sudden rise to the top of the charts attests to it widespread popularity. However, some worry that the app is inherently risky, and they question how Google will use the data it collects. In other words, the app is free, but at what cost to the user. In some jurisdictions, including Texas (and Illinois), biometric privacy protections are codified into the law in attempt to address exactly these concerns.

The use of facial recognition data for identification purposes is expressly prohibited in the Texas Business & Commerce Code, Section 503.001 unless certain requirements are met. Namely, the person or company who collects the biometric data must (1) inform the individual before capturing the biometric identifier and (2) receive the individual's consent. The Google Arts and Culture app does indeed prompt the user to accept the privacy agreement and states that Google "will only store your photo for the time it takes to search for matches." Nevertheless, Google has blocked the selfie-matching feature in Texas (and Illinois) fearing, presumably, the imposition of a $25,000 fine per violation of the Texas law.

It's been suggested that this denial of service may be Google's way of signaling to states who restrict the use of certain technologies that they won't be able share in all the benefits that tech companies have to offer. Perhaps it's a snub to those who won't cooperate with the tech giants by permitting the legal collection and use of biometric data. In any case, concerns about the collection of facial geometry data by Google, Facebook, Amazon, and others are very real, and although no federal laws yet exist to prohibit the use and retention of such data, this area of the law is sure to develop as the technology advances. Until then, there are ways to circumvent the Google restrictions in Texas and to find your look-alike in the art of the world. Have fun...if you dare!

Further reading:

• Could Your Face Be Used Against You? -- Texas Standard 
• Few Rules Govern Police Use of Facial Recognition Technology -- Wired
• Google's Art Selfie App Not Working in Texas and Illinois? Blame Tricky Biometric Laws -- FastCompany

Looking Back – Thurgood Marshall Confirmed to the United States Supreme Court

On August 30, 1967, Thurgood Marshall was confirmed as an Associate Justice to the United States Supreme Court, beginning what would become a 24-year career as a judge and one of the most-noted liberal voices on our nation’s highest court. Nominated by President Lyndon B. Johnson, Marshall became the first African-American to serve on the Supreme Court, a milestone that capped his illustrious legal career and his lifelong fight for equality and civil rights. In 2016, in honor of National African American History Month, the Harris County Law Library created a digital exhibit celebrating the life and legacy of Justice Marshall highlighting his career as a civil rights attorney, Solicitor General and Supreme Court justice. Being nominated to the highest court is an accomplishment in and of itself, but to survive the arduous confirmation process is a true test in perseverance and a sign of one's worthiness.

Article II, Section 2 of the United States Constitution gives the President, with the advice and consent of the Senate, the power to nominate persons to the Supreme Court. The appointment itself is just one part of a complex process that culminates, in most instances, with the swearing in of a new Supreme Court justice. It begins with the pre-hearing stage, which is investigative in nature, with the nominee responding to detailed questions posed by members of the Senate's Committee on the Judiciary seeking biographical, professional, and financial information. The American Bar Association, through its Standing Committee on the Federal Judiciary, also conducts its own independent, impartial evaluation of the candidate, focusing on his/her professional qualifications and competence as well as the nominee’s integrity and judicial temperament. The ABA does not consider the nominee’s political affiliation or ideology in its evaluation. The investigative stage is followed by the hearing stage at which the nominee testifies before the Senate Judiciary Committee. This has been the practice since 1955. The hearings consist of statements by the chair and other members of the committee as well as an opening statement by the nominee. Questioning by the committee ensues. These hearings serve many purposes, including enlightening those members of the Senate who may still be undecided and emphasizing certain issues. Public witnesses are also invited to appear. After the public hearings, the committee meets with the nominee privately in a closed door committee session. The final step is the reporting of the recommendation to the full Senate.

Justice Marshall was confirmed by the Senate with a vote of 69 yeas and 11 nos. You can access the Senate's report in the Congressional Record at the new service provided by the United States Government Publishing Office, Govinfo. Additional articles about Thurgood Marshall's confirmation can be found in Harvard Black Letter Journal available here at the Law Library through HeinOnline. Check out our previous blog post for information on how to access HeinOnline via your own mobile device.

To learn more about the United States Supreme Court Nomination and Confirmation process, please see:

• Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee
• Supreme Court Nominations Research Guide from Georgetown Law Library
• Supreme Court Nominations: present-1789

On September 4, you will have the opportunity to follow the confirmation hearings held by the Senate's Committee on the Judiciary as public hearings are scheduled to begin regarding nominee Brett M. Kavanaugh. Check out the Committee's website for nomination resources.

Flagship Legal Tech Institute CLE: MS Word for Legal Work

Due to popular demand, the Harris County Law Library Legal Tech Institute is proud to present its flagship hands-on training course tomorrow, August 30, at 2:00pm, in the dynamic setting of the County Attorney’s Office Conference Center. MS Word for Legal Work will be presented live by law librarians Elizabeth Bolles and Heather Holmes. Course participants will learn the ins and outs of America’s most popular word processing software. Key topics will include efile formatting, creating a tables of authorities, page and paragraph formatting, and protecting client data through simple metadata management. Each attendee will be provided a laptop for use during the class, and will receive personalized assistance. This session has been expanded so that law offices can send multiple attorneys and paralegals at once. Register through the Legal Tech Institute website.

Torn from the Headlines -- How Tech is Changing Law

In recent weeks, stories about tech in the practice of law have been filling our news feeds. Our last Tech Tuesday blog post focused on high profile failures and flubs. Today's stories reveal more productive uses of technology while demonstrating how the everyday online communication tools we now use are transforming the practice of law. 

Lawyers are employing technology in novel ways to serve process and consult with colleagues. As described below, the authorities that govern these developments -- legislation, court rules, case law, and ethics opinions -- are (slowly) evolving as well.  Twitter and Facebook are at center stage in these new approaches, as is digital communication itself. From the social media tools we use to the new literacy we've developed (e.g., abbreviations, emoticons, emoji, Bitmoji, stickers, memes, and more), tech is changing the law. 

DNC Serves Subpoena on Wikileaks via Twitter

Earlier this month, a law firm representing the Democratic National Convention used Twitter to serve legal documents on WikiLeaks, an international nonprofit organization that facilitates the release of classified information, obtained from anonymous sources, via its website. Aside from the high profile parties to the case and the controversial claims it makes, the newsworthy aspect of this story, particularly for those in the legal field, is that the subpoena was served with a tweet.  According to the Federal Rules of Civil Procedure, a court may serve an individual in another country through a number of channels, and although service by social media is not addressed specifically, Rule 4(f)(3) does allow for service "by other means not prohibited by international agreement, as the court orders." The Texas Rules of Civil Procedure include a similar provision. Rule 106(b)(2) states that a court may authorize service "in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit."

This may be a first for Twitter, but Facebook has been used a number of times to legally notify a hard-to-locate party. In a 2015 New York divorce case, a woman was permitted to serve her estranged husband through Facebook. A New Jersey court relied on that decision to allow the same method of legal notice in a similar case later that year.

Routine use of social media as an alternative method of service is still a topic of debate, but plenty of digital ink has been spilled discussing its benefits and risks. In 2013, a bill was introduced in the Texas legislature to allow substituted service through social media websites, but the bill was never referred to a committee, and the topic hasn't been addressed since. 

Texas Lawyers May Seek Input from Colleagues via Facebook

Just weeks ago, the State Bar of Texas Professional Ethics Committee considered this question: Can lawyers use social media to seek advice from other attorneys without violating the Texas Disciplinary Rules of Professional Conduct? According to the Committee, the answer is a qualified Yes. Attorneys may consult with their lawyer colleagues and seek their professional advice regarding client-related issues in online forums if and only if they honor their duty of confidentiality and respect the attorney-client privilege. The best source for further exploration of this topic is, of course, the opinion itself along with this report from the Texas Lawyer which provides an excellent overview of the State Bar's newly sanctioned activity.

Federal Court Uses Poop Emoji in a Published Opinion

The Seventh Circuit Court of Appeals recently published an opinion that included the poop emoji. There's almost nothing worthwhile to say about its appearance in this opinion except to recognize it as a historic first. To be fair, the poop emoji appeared as part of a quote from a message shared via Facebook. It was submitted as evidence in an employment discrimination case that ultimately hinged on the content of the quoted message. As it turns out, the use of emoji in employment suits has been discussed before. Legal scholars have also weighed in about emoji and the law and emoji as evidence, topics which are explored in the articles linked below. 

• Emoji as Language and Their Place Outside American Copyright Law (NYU Journal of Property & Entertainment Law)
• The Emoji Factor: Humanizing the Emerging Law of Digital Speech (Tennessee Law Review)
• Your Clients Use of Emoji: It Matters (Ingham County Bar Association BRIEFS)