Circumvention of Technological Measures that Protect Copyrighted Material

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 What Is Copyright?

In some ways, copyright law is like trademark law in that it protects inventions, logos, and brand names. If an item or work is copyrighted, it should be an original, not a reproduction or copy.

Copyright entitles the owner to many exclusive rights, such as:

  • The right to reproduce the copyrighted work
  • The right to distribute copies of the copyrighted work to the public for sale
  • The right to perform the copyrighted work
  • Rights to produce a license that is derived from other copyright materials
  • Licensing rights to manufacture and make a product

What Are the Different Types of Copyrighted Works?

There are endless types of creative work that can be protected by copyrights, including:

  • Recorded or sheet music
  • Books and novels
  • Software codes, video games, and CD-ROMs, although these may not be protected if they have already been distributed through a “copyleft” agreement
  • Art, such as paintings, plays, dance choreography, and sculptures

What Is Copyright Protection?

Under federal law, you get the copyright to your work automatically once you have “fixed” your original work in a “tangible medium of expression.” You must have independently created the work and not adapted it from something else. Also, the work must be placed in an appropriate medium so that it can be reproduced, viewed, or communicated to others.

When an author fixes a work in a tangible form without having to do anything, they are protected by copyright. When a type of work is protected by copyright, the creator or inventor decides who can use the work for what purpose. A protected work cannot be used by anyone else without the creator’s permission.

What Is Copyright Infringement?

Copyright infringement occurs when a person violates the copyright holder’s exclusive rights. Performing a play in public places for profit is only permitted by its copyright owner. Another person or company might be liable for infringement if they perform the play publicly for profit. It is also illegal to sell songs that are copyrighted without permission.

The punishment for infringement can range from civil charges for lost profits to confiscation of unauthorized material. Some infringement cases can also result in federal charges, making it a very serious crime.

Infringement occurs when a copyright owner’s exclusive rights are violated without express consent.

Besides the rights mentioned above, here are some examples of copyrights and common copyright infringements:

  • Infringement of the Right of Reproduction: Copyright owners maintain the exclusive right to reproduce their work in any fixed form. Consequently, a person who copies a work and sells it is considered to be infringing an owner’s right of reproduction. Copying a painting of an original artwork and selling it would constitute an infringement of the right of reproduction;
  • Infringement of the Right of Public Performance: If a person publicly performs an original protected song without permission, the act would be considered infringing the copyright owner’s right of public performance;
  • Infringement of the Right of Distribution: An example of infringing an owner’s right of distribution would be if someone sells unlicensed copies of someone else’s original work, such as a work of literature or art. Individuals cannot distribute copies of famous musicians’ music for monetary gain, for example;
  • Infringement of the Right to Derivative Works: Copyright owners have the right to modify their original work or create a new one based on their older works. A derivative work created without permission would infringe on the right to derivative works. An example of this would be making a movie based on a book without the author’s permission;
  • Infringement of the Right of Public Display: Copyright owners have the right to show their work publicly. The work they produce can be published online as well. Publication of someone else’s original work online without the owner’s consent would be considered an infringement of the copyright owner’s public display right. It would be considered an infringement of the right of public display to release a movie online without the owner’s permission.

What Are Technological Measures?

Copyright owners use technological measures to prevent others from accessing and copying their work. Copyrighted material can be encrypted or scrambled using technological measures.

What Is Circumvention of a Technological Measure?

The Digital Millennium Copyright Act (DMCA), which prohibits circumvention of technological measures, defines circumvention as doing any of the following without the copyright owner’s permission:

  • Descrambling scrambled material
  • Decrypting encrypted material
  • Avoiding technological measures
  • Bypassing technological measures
  • Deactivating technological measures
  • Removing technological measures

In addition, the DMCA prohibits circumvention devices and technologies from being:

  • Used
  • Manufactured
  • Sold
  • Imported
  • Otherwise offered to the public

However, anti-circumvention laws are subject to the same exceptions as copyright laws, including:

  • Fair use
  • Use by nonprofit libraries
  • Use by educational institutions

Should I Register a Copyright?

You should still formally register your copyright for several reasons. Even though your work is automatically protected by copyright once it meets the above description, if you do not properly register the copyright, you are limited in your remedies.

The registration of copyright will affect, for example:

  • Lawsuits: If you are a U.S. copyright owner, you must register your copyright before initiating an action for copyright infringement
  • Damages: You cannot get damages for infringement for any period before the copyright is registered
  • Evidence: The registration of copyright, in addition to some other criteria, is proof of the validity of a copyright

Original creators and owners of original works can register a copyright with the U.S. Copyright Office. To register a work, an owner must fill out a form specific to the work and submit a fee.

What Are Some Penalties for Copyright Infringement?

An individual who violates the exclusive rights of a copyright holder may be sued civilly for damages resulting from that infringement.

There are several legal penalties associated with copyright infringement, including:

  • Compensatory Damages: One of the most common remedies associated with a copyright infringement suit is that the infringing party will have to pay the copyright holder the money that they gained from the use of the copyright;
  • Statutory Damages: Statutory damages are damages established by statute, specifically Section 504 of the Copyright Act. The copyright owner can recover statutory damages, typically between $200.00 and $150,000.00 per infringed work. For parties who willfully violate a copyright, statutory damages will be higher. For parties who are unaware that they are violating a copyright, statutory damages will be lesser;
  • Injunction: The most common remedy for copyright infringement is an injunction. The injunction orders the party violating the copyright to stop infringing;
  • Orders of Seizure: If an infringing party possesses illegal copies of a copyrighted work, often the court will order that the illegal property be seized; and
  • Criminal Penalties: In the case of willful copyright infringement, the infringing party may also be held criminally liable and face criminal penalties, including imprisonment for up to 5 years, fines of up to $250,000.00, or both per violation.

Copyright infringement lawsuits may include any combination of the above damages, attorney fees, and court costs. Copyright infringement lawyers can determine which remedies are appropriate depending on the circumstances.

Do I Need a Copyright Attorney?

Suppose you are concerned that someone has circumvented technological measures protecting your copyrighted work. In that case, you need to speak to a copyright attorney, especially someone with anti-circumvention law experience. Easily find the right copyright attorney for your needs today with LegalMatch.

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