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Terms of Use


The Mixtape Submit website located at http://www.mixtapesubmit.com is a copyrighted work belonging to Mixtape Submit. Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features.

All such additional terms, guidelines,
and rules are incorporated by reference into these Terms.

These Terms of Use described the legally binding terms and conditions that oversee your use of the Site. BY LOGGING INTO THE SITE, YOU ARE BEING COMPLIANT THAT THESE TERMS and you represent that you have the authority and capacity to enter into these Terms. YOU SHOULD BE AT LEAST 18 YEARS OF AGE TO ACCESS THE SITE. IF YOU DISAGREE WITH ALL OF THE PROVISION OF THESE TERMS, DO NOT LOG INTO AND/OR USE THE SITE.

These terms require the use of arbitration Section 10.2 on an individual basis to resolve disputes and also limit the remedies available to you in the event of a dispute.

Access to the Site
Subject to these Terms. Company grants you a non-transferable, non-exclusive, revocable, limited license to access the Site solely for your own personal, noncommercial use.

Certain Restrictions.
The rights approved to you in these Terms are subject to the following restrictions: (a) you shall not sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site; (b) you shall not change, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other
proprietary notices on the Site must be retained on all copies thereof.
Company reserves the right to change, suspend, or cease the Site with or without notice to you. You approved that Company will not be held liable to you or any third-party for any change, interruption, or termination of the Site or any part.
No Support or Maintenance. You agree that Company will have no obligation to provide you with any support in connection with the Site.
Excluding any User Content that you may provide, you are aware that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Company or Company’s suppliers. Note that these Terms and access to the Site do not give you any rights, title or interest in or to any intellectual property rights, except for the limited access rights expressed in Section 2.1. Company and its suppliers
reserve all rights not granted in these Terms.

User Content
User Content. "User Content" means any and all information and content that a user submits to the Site, You are exclusively responsible for your User Content. You bear all risks associated with use of your User Content.

 You hereby certify that your User Content does not violate our
"Promotional 
Use Only" Policy. 

Each Mixtape must play atleast 30 songs in each mixtape. DJ Drops must be played atleast 5-10 seconds before the next song, mixed between 50-60 Seconds every song played. Users who submit their content to us, is giving all mixtape submissions and websites a non-exclusive right to use their content. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability. Company is not obliged to backup any User Content that you post; also, your User Content may be deleted at any time without prior notice to you. You are solely responsible for making your own backup copies of your User Content if you desire.

You hereby grant to Company an irreversible, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irreversibly waive any claims and assertions of moral rights or attribution with respect to your User Content.

Acceptable Use Policy. The following terms constitute our "Acceptable Use Policy": You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right or any intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual; (iii) that is harmful to minors in any way; or
(iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.

In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site, whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated
searches, requests, or queries to the Site.

We reserve the right to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.

If you provide Company with any feedback or suggestions regarding the Site, you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it believes appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary.

You agree to indemnify and hold Company and its officers, employees, and agents harmless, including costs and attorneys’ fees, from any claim or demand made by any third-party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Company reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

Third-Party Links & Ads; Other Users

Third-Party Links & Ads.
The Site may contain links to third-party websites and services, and/or display advertisements for third-parties. Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including
the third party’s privacy and data gathering practices.

Other Users.
Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.

You hereby release and forever discharge the Company and our officers, employees, agents, successors, and assigns from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature, that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site. If you are a California resident, you hereby waive California civil code section 1542 in connection with the foregoing, which states: "a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor."

Disclaimers
The site is provided on an "as-is" and "as available" basis, and company and our suppliers expressly disclaim any and all warranties and conditions of any kind, whether express, implied, or statutory, including all warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We and our suppliers make not guarantee that the site will meet your requirements, will be available on an uninterrupted, timely, secure, or error-free basis, or will be accurate, reliable, free of viruses or other harmful code, complete, legal, or safe. If applicable law requires any warranties with respect to the site, all such warranties are limited in duration to ninety (90) days from the date of first use.

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.

Limitation on Liability
To the maximum extent permitted by law, in no event shall company or our suppliers be liable to you or any third-party for any lost profits, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to these terms or your use of, or incapability to use the site even if company has been advised of the possibility of such damages. Access to and use of the site is at your own discretion and risk, and you will be solely responsible for any damage to your device or computer system, or loss of data resulting therefrom.

To the maximum extent permitted by law, notwithstanding anything to the contrary contained herein, our liability to you for any damages arising from or related to this agreement, will at all times be limited to a maximum of fifty U.S. dollars (u.s. $50). The existence of more than one claim will not enlarge this limit. You agree that our suppliers will have no liability of any kind arising from or relating to this agreement.

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2 through 2.5, Section 3 and Sections 4 through 10.

Copyright Policy.
Company respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination of users of our online Site who are repeated infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: your physical or electronic signature; identification of the copyrighted work(s) that you claim to have been infringed; identification of the material on our services that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and e-mail address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

General
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earliest of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for
MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

Applicability of Arbitration Agreement.
All claims and disputes in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services
or goods provided under the Terms.

Notice Requirement and Informal Dispute Resolution.
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: WeGoingToMakeIt. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount
of the award to which either party is entitled.

Arbitration Rules.
Arbitration shall be initiated through the American Arbitration Association, an established alternative dispute resolution provider that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

Additional Rules for Non-Appearance Based Arbitration.
If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

Time Limits.
If you or the Company pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations and within any deadline imposed under the AAA Rules for the pertinent claim.

Authority of Arbitrator.
If arbitration is initiated, the arbitrator will decide the rights and liabilities of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.

Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less expensive than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

Waiver of Class or Consolidated Actions.
All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated
with those of any other customer or user.

Confidentiality.
All aspects of the arbitration proceeding shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

Severability.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

Right to Waive.
Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Company.

Small Claims Court.
Nonetheless the foregoing, either you or the Company may bring an individual action in small claims court.

Emergency Equitable Relief.
Anyhow the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

Claims Not Subject to Arbitration.
Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Netherlands County, California, for such purposes.

The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.

Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

Electronic Communications.
The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal obligation that such communications would satisfy if it were be in a hard copy writing.

Entire Terms.
These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation". If any provision of these Terms is held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

Copyright/Trademark Information. Copyright ©. All rights reserved. All trademarks, logos and service marks displayed on the Site are our property or the property of other third-parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

“No copyright infringement is intended”


"Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). 1
Copyright Office Summary December 1998"

Non- Commercial Advertising Policy

Cookies and Web Beacons.
Like any other website, Mixtape Submit uses ‘cookies’. These cookies are used to store information including visitors’ preferences, and the pages on the website that the visitor accessed or visited. The information is used to optimize the users’ experience by customizing our web page content based on visitors’ browser type and/or other information.

Google DoubleClick DART Cookie.
Google is one of a third-party vendor on our site. It also uses cookies, known as DART cookies, to serve ads to our site visitors based upon their visit to www.mixtapesubmit.com and other sites on the internet. However, visitors may choose to decline the use of DART cookies by visiting the Google ad and content network Privacy Policy at the following URL – https://policies.google.com/technologies/ads

Non-Commercial Advertising
Non-commercial advertising is sponsored by or for a charitable institution or civic group or religious or political organization. Many non-commercial advertisements seek money and placed in the hope of raising funds. Others hope to change consumer behavior. So the main goals of noncommercial advertising are:

-Stimulate inquires for information
-Popularize social cause
-Change activity habits
-Decrease waste of resources
-Communicate political viewpoint
-Improve public attitude
-Remind people to give again.

So called word-of-mouth advertising is a person to person communication that is perceived as being noncommercial, concerning goods or services: it is face-to-face product related communications between and among the friends, relatives and others. Because it is noncommercial, it is usually seen as being an unbiased source of information.

Our Advertising Partners.
Some of advertisers on our site may use cookies and web beacons. Our advertising partners are listed below. Each of our advertising partners has their own Privacy Policy for their policies on user data. For easier access, we hyperlinked to their Privacy Policies below.

Fair Use Limitations

107. Limitations on exclusive rights: Fair use 40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a 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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

"THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998 U.S. Copyright Office Summary
December 1998"

INTRODUCTION
"The Digital Millennium Copyright Act (DMCA) was signed into law by

1. President Clinton on October 28, 1998. The legislation implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA also addresses a
number of other significant copyright-related issues.

The DMCA is divided into five titles:
! Title I, the “WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998,”
implements the WIPO 
treaties.


! Title II, the “Online Copyright Infringement Liability Limitation
Act,” creates limitations on the liability of online service providers for
copyright infringement when engaging in certain types of activities.


! Title III, the “Computer Maintenance Competition Assurance
Act,” creates an exemption for making a copy of a computer program
by activating a computer for purposes of maintenance or repair.


! Title IV contains six miscellaneous provisions, relating to the
functions of the Copyright Office, distance education, the exceptions
in the Copyright Act for libraries and for making ephemeral recordings,
“webcasting” of sound recordings on the Internet, and the applicability
of collective bargaining agreement obligations in the case of transfers
of rights in motion pictures.


! Title V, the “Vessel Hull Design Protection Act,” creates a new form
of protection for the design of vessel hulls.
This memorandum summarizes briefly each title of the DMCA. It provides
merely an overview of the law’s provisions; for purposes of length and readability a significant amount of detail has been omitted. A complete understanding of any
provision of the DMCA requires reference to the text of the legislation itself.

The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 2

TITLE I: WIPO TREATY IMPLEMENTATION
Title I implements the WIPO treaties. First, it makes certain technical
amendments to U.S. law, in order to provide appropriate references and links to the treaties. Second, it creates two new prohibitions in Title 17 of the U.S. Code—one on circumvention of technological measures used by copyright owners to protect their works and one on tampering with copyright management information—and adds civil remedies and criminal penalties for violating the prohibitions. In addition, Title I requires the U.S. Copyright Office to perform two joint studies with the National Telecommunications and Information Administration of the Department of

Commerce (NTIA).
Technical Amendments

National Eligibility
The WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT) each require member countries to provide protection to certain works from other member countries or created by nationals of other member countries. That protection must be no less favorable than
that accorded to domestic works.

Section 104 of the Copyright Act establishes the conditions of eligibility for
protection under U.S. law for works from other countries. Section 102(b) of the
DMCA amends section 104 of the Copyright Act and adds new definitions to section 101 of the Copyright Act in order to extend the protection of U.S. law to those works required to be protected under the WCT and the WPPT.

Restoration of Copyright Protection
Both treaties require parties to protect preexisting works from other member
countries that have not fallen into the public domain in the country of origin through the expiry of the term of protection. A similar obligation is contained in both the Berne Convention and the TRIPS Agreement. In 1995 this obligation was implemented in the Uruguay Round Agreements Act, creating a new section 104A in the Copyright Act to restore protection to works from Berne or WTO member countries that are still protected in the country of origin, but fell into the public domain in the United States in the past because of a failure to comply with formalities that then existed in U.S. law, or due to a lack of treaty relations.

Section 102(c) of the DMCA
amends section 104A to restore copyright protection in the same circumstances to works from WCT and WPPT member countries.

“No copyright infringement is intended”


The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 3
Registration as a Prerequisite to Suit

The remaining technical amendment relates to the prohibition in both treaties
against conditioning the exercise or enjoyment of rights on the fulfillment of formalities.

Section 411(a) of the Copyright Act requires claims to copyright to be
registered with the Copyright Office before a lawsuit can be initiated by the copyright owner, but exempts many foreign works in order to comply with existing treaty obligations under the Berne Convention.

Section 102(d) of the DMCA amends section 
411(a) by broadening the exemption to cover all foreign works. Technological Protection and Copyright Management Systems Each of the WIPO treaties contains virtually identical language obligating
member states to prevent circumvention of technological measures used to protect copyrighted works, and to prevent tampering with the integrity of copyright management information. These obligations serve as technological adjuncts to the exclusive rights granted by copyright law. They provide legal protection that the international copyright community deemed critical to the safe and efficient exploitation of works on digital networks.

Circumvention of Technological Protection Measures
General approach

Article 11 of the WCT states:
Contracting Parties shall provide adequate legal protection
and effective legal remedies against the circumvention
of effective technological measures that are used
by authors in connection with the exercise of their
rights under this Treaty or the Berne Convention and
that restrict acts, in respect of their works, which are
not authorized by the authors
concerned or permitted by law.

Article 18 of the WPPT contains nearly identical language.
Section 103 of the DMCA adds a new chapter 12 to Title 17 of the U.S. Code.
New section 1201 implements the obligation to provide adequate and effective
protection against circumvention of technological measures used by copyright owners to protect their works.

Section 1201 divides technological measures into two categories: measures that
prevent unauthorized access to a copyrighted work and measures that prevent

The Digital Millennium Copyright Act of 1998
“Copying” is used in this context as a short-hand for the exercise of any of the exclus- 2 ive rights of an author under section 106 of the Copyright Act. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in this second category.

Copyright Office Summary December 1998 Page 4
unauthorized copying of a copyrighted work. Making or selling devices or services that 2 are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second.

This distinction was employed to assure that the public will have the continued
ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited. Section 1201 proscribes devices or services that fall within any one of the following three categories:

! they are primarily designed or produced to circumvent;
! they have only limited commercially significant purpose or use other
than to circumvent; or ! they are marketed for use in circumventing.
No mandate

Section 1201 contains language clarifying that the prohibition on circumvention
devices does not require manufacturers of consumer electronics, telecommunications or computing equipment to design their products affirmatively to respond to any particular technological measure. (Section 1201(c)(3)). Despite this general ‘no mandate’ rule, section 1201(k) does mandate an affirmative response for one particular type of technology: within 18 months of enactment, all analog videocassette recorders must be designed to conform to certain defined technologies, commonly known as Macrovision, currently in use for preventing unauthorized copying of analog videocassettes and certain analog signals. The provision prohibits rightholders from applying these specified technologies to free television and basic and extended basic tier
cable broadcasts.

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Copyright Office Summary December 1998 Page 5
Savings clauses

Section 1201 contains two general savings clauses. First, section 1201(c)(1)
states that nothing in section 1201 affects rights, remedies, limitations or defenses to copyright infringement, including fair use. Second, section 1201(c)(2) states that nothing in section 1201 enlarges or diminishes vicarious or contributory copyright infringement.

Exceptions
Finally, the prohibitions contained in section 1201 are subject to a number of
exceptions. One is an exception to the operation of the entire section, for law
enforcement, intelligence and other governmental activities. (Section 1201(e)). The
others relate to section 1201(a), the provision dealing with the category of technological measures that control access to works.
The broadest of these exceptions, section 1201(a)(1)(B)-(E), establishes an
ongoing administrative rule-making proceeding to evaluate the impact of the
prohibition against the act of circumventing such access-control measures. This
conduct prohibition does not take effect for two years. Once it does, it is subject to an exception for users of a work which is in a particular class of works if they are or are likely to be adversely affected by virtue of the prohibition in making noninfringing uses. The applicability of the exemption is determined through a periodic rulemaking by the Librarian of Congress, on the recommendation of the Register of Copyrights, who is to consult with the Assistant Secretary of Commerce for Communications and Information.

The six additional exceptions are as follows:
1. Nonprofit library, archive and educational institution exception
(section 1201(d)). The prohibition on the act of circumvention of
access control measures is subject to an exception that permits
nonprofit libraries, archives and educational institutions to circumvent
solely for the purpose of making a good faith determination as to
whether they wish to obtain authorized access to the work.
2. Reverse engineering (section 1201(f)). This exception permits
circumvention, and the development of technological means for such
circumvention, by a person who has lawfully obtained a right to use a
copy of a computer program for the sole purpose of identifying and
analyzing elements of the program necessary to achieve interoperability
with other programs, to the extent that such
acts are permitted under copyright law.
3. Encryption research (section 1201(g)). An exception for encryption
research permits circumvention of access control measures, and the
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Copyright Office Summary December 1998 Page 6
development of the technological means to do so, in order to identify
flaws and vulnerabilities of encryption technologies.
4. Protection of minors (section 1201(h)). This exception allows a court
applying the prohibition to a component or part to consider the
necessity for its incorporation in technology that prevents access of
minors to material on the Internet.
5. Personal privacy (section 1201(i)). This exception permits circumvention
when the technological measure, or the work it protects, is capable
of collecting or disseminating personally identifying information about
the online activities of a natural person.
6. Security testing (section 1201(j)). This exception permits circumvention
of access control measures, and the development of technological
means for such circumvention, for the purpose of testing the security
of a computer, computer system or computer network, with the
authorization of its owner or operator.
Each of the exceptions has its own set of conditions on its applicability, which
are beyond the scope of this summary.

Integrity of Copyright Management Information
Article 12 of the WCT provides in relevant part:

Contracting Parties shall provide adequate and effective
legal remedies against any person knowingly performing
any of the following acts knowing, or with respect to
civil remedies having reasonable grounds to know, that
it will induce, enable, facilitate or conceal an infringement
of any right covered by this Treaty or the Berne

Convention:
(i) to remove or alter any electronic rights
management information without authority;
(ii) to distribute, import for distribution, broadcast
or communicate to the public, without authority,
works or copies of works knowing that electronic rights
management information has been removed or altered
without authority.

Article 19 of the WPPT contains nearly identical language.
New section 1202 is the provision implementing this obligation to protect the
integrity of copyright management information (CMI). The scope of the protection

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Copyright Office Summary December 1998 Page 7
is set out in two separate paragraphs, the first dealing with false CMI and the second with removal or alteration of CMI. Subsection (a) prohibits the knowing provision or distribution of false CMI, if done with the intent to induce, enable, facilitate or conceal infringement. Subsection (b) bars the intentional removal or alteration of CMI without authority, as well as the dissemination of CMI or copies of works, knowing that the CMI has been removed or altered without authority.

Liability under subsection (b)
requires that the act be done with knowledge or, with respect to civil remedies, with reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement.

Subsection (c) defines CMI as identifying information about the work, the
author, the copyright owner, and in certain cases, the performer, writer or director of the work, as well as the terms and conditions for use of the work, and such other information as the Register of Copyrights may prescribe by regulation. Information concerning users of works is explicitly excluded.
Section 1202 is subject to a general exemption for law enforcement, intelligence
and other governmental activities. (Section 1202(d)). It also contains limitations on the liability of broadcast stations and cable systems for removal or alteration of CMI in certain circumstances where there is no intent to induce, enable, facilitate or conceal an infringement. (Section 1202(e)).

Remedies
Any person injured by a violation of section 1201 or 1202 may bring a civil
action in Federal court. Section 1203 gives courts the power to grant a range of
equitable and monetary remedies similar to those available under the Copyright Act, including statutory damages. The court has discretion to reduce or remit damages in cases of innocent violations, where the violator proves that it was not aware and had no reason to believe its acts constituted a violation. (Section 1203(c)(5)(A)). Special protection is given to nonprofit libraries, archives and educational institutions, which are entitled to a complete remission of damages in these circumstances.

(Section 1203(c)(5)(B)).

In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and
for purposes of commercial advantage or private financial gain. Under section 1204 penalties range up to a $500,000 fine or up to five years imprisonment for a first offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent offenses. Nonprofit libraries, archives and educational institutions are entirely exempted from criminal liability. (Section 1204(b)).

The Digital Millennium Copyright Act of 1998
The Fairness in Musical Licensing Act, Title II of Pub. L. No. 105-298, 112 Stat. 2827, 3 2830-34 (Oct. 27, 1998) also adds a new section 512 to the Copyright Act. This duplication of section numbers will need to be corrected in a technical amendments bill. Copyright Office Summary December 1998 Page 8

Copyright Office and NTIA Studies Relating to Technological Development
Title I of the DMCA requires the Copyright Office to conduct two studies
jointly with NTIA, one dealing with encryption and the other with the effect of
technological developments on two existing exceptions in the Copyright Act. New
section 1201(g)(5) of Title 17 of the U.S. Code requires the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to report to the Congress no later than one year from enactment on the effect that the exemption for encryption research (new section 1201(g)) has had on encryption research, the development of encryption technology, the adequacy and effectiveness of technological measures designed to protect copyrighted works, and the protection of copyright owners against unauthorized access to their encrypted copyrighted works.
Section 104 of the DMCA requires the Register of Copyrights and the Assistant
Secretary of Commerce for Communications and Information to jointly evaluate (1) the effects of Title I of the DMCA and the development of electronic commerce and associated technology on the operation of sections 109 (first sale doctrine) and 117 (exemption allowing owners of copies of computer programs to reproduce and adapt them for use on a computer), and (2) the relationship between existing and emergent technology and the operation of those sections. This study is due 24 months after the date of enactment of the DMCA.

TITLE II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Title II of the DMCA adds a new section 512 to the Copyright Act to create 3
four new limitations on liability for copyright infringement by online service providers. The limitations are based on the following four categories of conduct by a service provider:

1. Transitory communications;
2. System caching;
3. Storage of information on systems or networks at
direction of users; and
4. Information location tools.

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December 1998 Page 9

New section 512 also includes special rules concerning the application of these
limitations to nonprofit educational institutions.

Each limitation entails a complete bar on monetary damages, and restricts the

availability of injunctive relief in various respects. (Section 512(j)). Each limitation
relates to a separate and distinct function, and a determination of whether a service provider qualifies for one of the limitations does not bear upon a determination of whether the provider qualifies for any of the other three.

(Section 512(n)).
The failure of a service provider to qualify for any of the limitations in section
512 does not necessarily make it liable for copyright infringement. The copyright
owner must still demonstrate that the provider has infringed, and the provider may still avail itself of any of the defenses, such as fair use, that are available to copyright defendants generally. (Section 512(l)).

In addition to limiting the liability of service providers, Title II establishes a
procedure by which a copyright owner can obtain a subpoena from a federal court ordering a service provider to disclose the identity of a subscriber who is allegedly engaging in infringing activities. (Section 512(h)).
Section 512 also contains a provision to ensure that service providers are not
placed in the position of choosing between limitations on liability on the one hand and preserving the privacy of their subscribers, on the other. Subsection (m) explicitly states that nothing in section 512 requires a service provider to monitor its service or access material in violation of law (such as the Electronic Communications Privacy Act)
in order to be eligible for any of the liability limitations.

Eligibility for Limitations Generally
A party seeking the benefit of the limitations on liability in Title II must qualify
as a “service provider.” For purposes of the first limitation, relating to transitory
communications, “service provider” is defined in section 512(k)(1)(A) as “an entity
offering the transmission, routing, or providing of connections for digital online
communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” For purposes of the other three limitations, “service provider” is more broadly defined in section 512(k)(l)(B) as “a provider of online services or network access, or the operator of facilities therefor.”

In addition, to be eligible for any of the limitations, a service provider must
meet two overall conditions: (1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with “standard technical measures.” (Section 512(i)). “Standard technical measures” are defined as measures that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair and voluntary multi-industry process, are available to anyone on

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Copyright Office Summary December 1998 Page 10
reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.

Limitation for Transitory Communications
In general terms, section 512(a) limits the liability of service providers in
circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else’s request. This limitation covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and transient copies that are made automatically in the operation of a network.
In order to qualify for this limitation, the service provider’s activities must meet
the following conditions:

! The transmission must be initiated by a person other than the provider.
! The transmission, routing, provision of connections, or copying must
be carried out by an automatic technical process without selection of
material by the service provider.

! The service provider must not determine the recipients of the material.
! Any intermediate copies must not ordinarily be accessible to anyone
other than anticipated recipients, and must not be retained for longer
than reasonably necessary.
! The material must be transmitted with no modification to its content.

Limitation for System Caching
Section 512(b) limits the liability of service providers for the practice of
retaining copies, for a limited time, of material that has been made available online by a person other than the provider, and then transmitted to a subscriber at his or her direction. The service provider retains the material so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving
the material from the original source on the network.
The benefit of this practice is that it reduces the service provider’s bandwidth
requirements and reduces the waiting time on subsequent requests for the same
information. On the other hand, it can result in the delivery of outdated information to subscribers and can deprive website operators of accurate “hit” information — information about the number of requests for particular material on a website — from which advertising revenue is frequently calculated. For this reason, the person making the material available online may establish rules about updating it, and may utilize technological means to track the number of “hits.”

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Copyright Office Summary December 1998 Page 11
The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it. It is subject to the
following conditions:

! The content of the retained material must not be modified.
! The provider must comply with rules about “refreshing” material—replacing
retained copies of material with material from the
original location— when specified in accordance with a generally
accepted industry standard data communication protocol.
! The provider must not interfere with technology that returns “hit”
information to the person who posted the material, where such
technology meets certain requirements.
! The provider must limit users’ access to the material in accordance with
conditions on access (e.g., password protection) imposed by the person
who posted the material.

! Any material that was posted without the copyright owner’s authorization
must be removed or blocked promptly once the service provider
has been notified that it has been removed, blocked, or ordered to be
removed or blocked, at the originating site.
Limitation for Information Residing on Systems or Networks at the
Direction of Users

Section 512(c) limits the liability of service providers for infringing material on
websites (or other information repositories) hosted on their systems. It applies to
storage at the direction of a user. In order to be eligible for the limitation, the
following conditions must be met:
! The provider must not have the requisite level of knowledge of the
infringing activity, as described below.
! If the provider has the right and ability to control the infringing activity,
it must not receive a financial benefit directly attributable to the
infringing activity. ! Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.
In addition, a service provider must have filed with the Copyright Office a
designation of an agent to receive notifications of claimed infringement. The Office provides a suggested form for the purpose of designating an agent
(http://www.loc.gov/copyright/onlinesp/) and maintains a list of agents on the
Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/).

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Copyright Office Summary December 1998 Page 12
Under the knowledge standard, a service provider is eligible for the limitation
on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it. The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving
a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).
In order to protect against the possibility of erroneous or fraudulent
notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

Penalties are provided for knowing material misrepresentations in either a
notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider.

(Section 512(f)).
Limitation for Information Location Tools
Section 512(d) relates to hyperlinks, online directories, search engines and the
like. It limits liability for the acts of referring or linking users to a site that contains
infringing material by using such information location tools,
if the following conditions are met:

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Copyright Office Summary December 1998 Page 13
! The provider must not have the requisite level of knowledge that the
material is infringing. The knowledge standard is the same as under the
limitation for information residing on systems or networks.
! If the provider has the right and ability to control the infringing activity,
the provider must not receive a financial benefit
directly attributable to the activity.

! Upon receiving a notification of claimed infringement, the provider
must expeditiously take down or block access to the material.
These are essentially the same conditions that apply under the previous
limitation, with some differences in the notification requirements. The provisions
establishing safeguards against the possibility of erroneous or fraudulent notifications, as discussed above, as well as those protecting the provider against claims based on having taken down the material apply to this limitation. (Sections 512(f)-(g)). Special Rules Regarding Liability of Nonprofit Educational Institutions
Section 512(e) determines when the actions or knowledge of a faculty member
or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability. As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a “person other than the provider,” so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met: ! the faculty member or graduate student’s infringing activities do not
involve providing online access to course materials that were required or recommended during the past three years; ! the institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing; and
! the institution provides all of its users with informational materials
describing and promoting compliance with copyright law.

TITLE III: COMPUTER MAINTENANCE OR REPAIR
Title III expands the existing exemption relating to computer programs in
section 117 of the Copyright Act, which allows the owner of a copy of a program to
make reproductions or adaptations when necessary to use the program in conjunction with a computer. The amendment permits the owner or lessee of computer to make or authorize the making of a copy of a computer program in the course of maintaining or repairing that computer. The exemption only permits a copy that is made automatically when a computer is activated, and only if the computer already lawfully

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Copyright Office Summary December 1998 Page 14
contains an authorized copy of the program. The new copy cannot be used in any
other manner and must be destroyed immediately after the maintenance or repair is completed.

TITLE IV: MISCELLANEOUS PROVISIONS
Clarification of the Authority of the Copyright Office
Section 401(b), adds language to section 701 of the Copyright Act confirming
the Copyright Office’s authority to continue to perform the policy and international
functions that it has carried out for decades under its existing general authority. Ephemeral Recordings for Broadcasters
Section 112 of the Copyright Act grants an exemption for the making of
“ephemeral recordings.” These are recordings made in order to facilitate a transmission. Under this exemption, for example, a radio station can record a set of songs and broadcast from the new recording rather than from the original CDs (which would have to be changed “on the fly” during the course of a broadcast).
As it existed prior to enactment of the DMCA, section 112 permitted a
transmitting organization to make and retain for up to six months (hence the term
“ephemeral”) no more than one copy of a work if it was entitled to transmit a public performance or display of the work, either under a license or by virtue of the fact that there is no general public performance right in sound recordings
(as distinguished from musical works).

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA)
created, for the first time in U.S. copyright law, a limited public performance right in sound recordings. The right only covers public performances by means of digital transmission and is subject to an exemption for digital broadcasts (i.e., transmissions by FCC licensed terrestrial broadcast stations) and a statutory license for certain subscription transmissions that are not made on demand (i.e. in response to the specific request of a recipient).

Section 402 of the DMCA expands the section 112 exemption to include
recordings that are made to facilitate the digital transmission of a sound recording where the transmission is made under the DPRA’s exemption for digital broadcasts or statutory license. As amended, section 112 also permits in some circumstances the circumvention of access control technologies in order to enable an organization to make an ephemeral recording.

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Copyright Office Summary December 1998 Page 15
Distance Education Study
In the course of consideration of the DMCA, legislators expressed an interest
in amending the Copyright Act to promote distance education, possibly through an expansion of the existing exception for instructional broadcasting in section 110(2). Section 403 of the DMCA directs the Copyright Office to consult with affected parties and make recommendations to Congress on how to promote distance education through digital technologies. The Office must report to Congress within six months of enactment.

The Copyright Office is directed to consider the following issues:
! The need for a new exemption;
! Categories of works to be included in any exemption;
! Appropriate quantitative limitations on the portions of works that may
be used under any exemption;
! Which parties should be eligible for any exemption;
! Which parties should be eligible recipients of distance education
material under any exemption;
! The extent to which use of technological protection measures should
be mandated as a condition of eligibility for any exemption;
! The extent to which the availability of licenses should be considered in
assessing eligibility for any exemption; and
! Other issues as appropriate.

Exemption for Nonprofit Libraries and Archives
Section 404 of the DMCA amends the exemption for nonprofit libraries and
archives in section 108 of the Copyright Act to accommodate digital technologies and evolving preservation practices. Prior to enactment of the DMCA, section 108
permitted such libraries and archives to make a single facsimile (i.e., not digital) copy of a work for purposes of preservation or interlibrary loan. As amended, section 108 permits up to three copies, which may be digital, provided that digital copies are not made available to the public outside the library premises. In addition, the amended section permits such a library or archive to copy a work into a new format if the original format becomes obsolete—that is, the machine or device used to render the work perceptible is no longer manufactured or is no longer reasonably available in the commercial marketplace.
Webcasting Amendments to the Digital Performance Right in Sound Recordings
As discussed above, in 1995 Congress enacted the DPRA, creating a
performance right in sound recordings that is limited to digital transmissions. Under

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Copyright Office Summary December 1998 Page 16
that legislation, three categories of digital transmissions were addressed: broadcast transmissions, which were exempted from the performance right; subscription transmissions, which were generally subject to a statutory license; and on-demand transmissions, which were subject to the full exclusive right. Broadcast transmissions under the DPRA are transmissions made by FCC licensed terrestrial broadcast stations. In the past several years, a number of entities have begun making digital transmissions of sound recordings over the Internet using streaming audio technologies.
This activity does not fall squarely within any of the three categories that were
addressed in the DPRA. Section 405 of the DMCA amends the DPRA, expanding the statutory license for subscription transmissions to include webcasting as a new category of “eligible nonsubscription transmissions.”

In addition to expanding the scope of the statutory license, the DMCA revises
the criteria that any entity must meet in order to be eligible for the license (other than those who are subject to a grandfather clause, leaving the existing criteria intact). It revises the considerations for setting rates as well (again, subject to a grandfather clause), directing arbitration panels convened under the law to set the royalty rates at fair market value.

This provision of the DMCA also creates a new statutory license for making
ephemeral recordings. As indicated above, section 402 of the DMCA amends section 112 of the Copyright Act to permit the making of a single ephemeral recording to facilitate the digital transmission of sound recording that is permitted either under the DPRA’s broadcasting exemption or statutory license. Transmitting organizations that
wish to make more than the single ephemeral recording of a sound recording that is permitted under the outright exemption in section 112 are now eligible for a statutory license to make such additional ephemeral recordings. In addition, the new statutory license applies to the making of ephemeral recordings by transmitting organizations other than broadcasters who are exempt from the digital performance right, who are not covered by the expanded exemption in section 402 of the DMCA. Assumption of Contractual Obligations upon Transfers of Rights in Motion Pictures

Section 416 addresses concerns about the ability of writers, directors and screen
actors to obtain residual payments for the exploitation of motion pictures in situations where the producer is no longer able to make these payments. The guilds’ collective bargaining agreements currently require producers to obtain assumption agreements from distributors in certain circumstances, by which the distributor assumes the producer’s obligation to make such residual payments. Some production companies apparently do not always do so, leaving the guilds without contractual privity enabling them to seek recourse from the distributor.

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Copyright Office Summary December 1998 Page 17

The DMCA adds a new chapter to Title 28 of the U.S. Code that imposes on
transferees those obligations to make residual payments that the producer would be required to have the transferee assume under the relevant collective bargaining agreement. The obligations attach only if the distributor knew or had reason to know that the motion picture was produced subject to a collective bargaining agreement, or in the event of a court order confirming an arbitration award under the collective bargaining agreement that the producer cannot satisfy within ninety days. There are two classes of transfers that are excluded from the scope of this provision. The first is transfers limited to public performance rights, and the second is grants of security interests, along with any subsequent transfers from the security interest holder. The provision also directs the Comptroller General, in consultation with the Register of Copyrights, to conduct a study on the conditions in the motion picture industry that gave rise to this provision, and the impact of the provision on the industry. The study is due two years from enactment.

TITLE V: PROTECTION OF CERTAIN ORIGINAL DESIGNS
Title V of the DMCA, entitled the Vessel Hull Design Protection Act
(VHDPA), adds a new chapter 13 to Title 17 of the U.S. Code. It creates a new system for protecting original designs of certain useful articles that make the article attractive or distinctive in appearance. For purposes of the VHDPA, “useful articles” are limited to the hulls (including the decks) of vessels no longer than 200 feet. A design is protected under the VHDPA as soon as a useful article embodying the design is made public or a registration for the design is published. Protection is lost if an application for registration is not made within two years after a design is first made public, but a design is not registrable if it has been made public more than one year before the date of the application for registration. Once registered, protection continues for ten years from the date protection begins. The VHDPA is subject to a legislative sunset: the Act expires two years from enactment (October 28, 2000). The Copyright Office is directed to conduct two joint studies with the Patent and Trademark Office—the first by October 28, 1999 and the second by October 28, 2000—evaluating the impact of the VHDPA. EFFECTIVE DATES

Most provisions of the DMCA are effective on the date of enactment. There
are, however, several exceptions. The technical amendments in Title I that relate to eligibility of works for protection under U.S. copyright law by virtue of the new WIPO treaties do not take effect until the relevant treaty comes into force. Similarly, restoration of copyright protection for such works does not become effective until the relevant treaty comes into force. The prohibition on the act of circumvention of access

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Copyright Office Summary December 1998 Page 18
control measures does not take effect until two years from enactment
(October 28, 2000)."

Get a Copy of the DMCA Copyright Act.

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