Glossary
Glossary created by Berkman Center team
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"Notice and Takedown”“Notice and takedown” refers to the particular sort of cease and desist letter associated with the U.S. Digital Millennium Copyright Act. An Internet entity ( such as YouTube), upon receiving notice that it is hosting or otherwise making available a copyrighted work, can avoid liability for infringement by immediately taking down the copy of the work in question. These notices are often criticized because their process strongly preferences rightsholders, who can effectively shut down any and all uses of their work, whether fair, permissible or not, since most posters will not bother to challenge a takedown notice with a counternotice. CounternoticeThe response to a DMCA takedown notice. A counternotice is the action taken by the person who originally posted the work that was taken down under a DMCA Section 512 “notice and takedown”. If the poster believes that the work was used legitimately, they can inform the host, who then are required to put it back up, and notify the alleged rightsholder that the copyright has been challenged. The process for challenging takedowns with a counterntice is much more time-consuming and lengthy than that for a takedown itself, leading some to criticize the system as unfairly favoring alleged rights-holders, creating a legal avenue for private censorship of speech, and confronting Internet hosting sites with skewed incentives. “Putback”When a website that took content down in response to a DMCA takedown notice puts it back up after receiving a counternotice. “Putback” refers to when an Internet content host, such as YouTube, having received a “notice and takedown” and then a “counternotice”, puts the possibly infringing content back online, pending a review of its copyright status. Other Resources
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“Actual Knowledge”Having direct knowledge (as opposed to merely having reason to believe) that copyright infringement is occurring. Some copyright laws require web hosts to remove content from their servers if they posses "actual knowledge" that the content infringes copyright. Under such laws the hosts may become liable if they do not remove the content. For example, Section 512(c) of the U.S. Digital Millenium Copyright Act reads: “(c) Information Residing on Systems or Networks At Direction of Users. (1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider (A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; See also:
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“Browsewrap”“Browsewrap” is a slang term for a contract governing access to or use of content on a website that does not require the website user to click on a button or otherwise take action to expressly manifest consent to the terms of the agreemen. Typically, the Internet user is considered to have agreed to the terms of the browsewrap agreement by accessing or “browsing” the website. The terms of a browsewrap agreement governing access to a website are not always prominently displayed to the Internet user, and instead are often listed on a separate page that can only be accessed by clicking a link at the bottom of the screen. For this reason, some commentators question whether browsewrap agreements create enforceable contracts. See also:
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“Cease-and-desist” letterA letter sent to an alleged copyright infringer or the entity hosting allegedly infringing material, requesting that certain activities be ceased or that access to the allegedly infringing material be disabled. With respect to Internet content, a cease and desist letter can take the form of a "takedown notice.” 'Under the U.S. copyright legislation known as the Digital Millenium Copyright Act, a copyright holder who believes that a website is infringing the holder’s copyright, usually by hosting protected material without permission, can send a cease-and-desist letter to the entity hosting the material. The website will not be held liable if it immediately takes down the allegedly infringing work upon receipt of the takedown notice. There are procedures under which the person who posted the content can challenge a takedown notice, and have access to the restored. Other resources:
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“Fair Dealing”The term used in the United Kingdom and other Commonwealth nations to describe the circumstances under which one can use copyrighted works without payments or permission. Somewhat similar to the concept of “fair use” in the United States, “fair dealing” is found in many common law jurisdictions, such as Canada, Australia, New Zealand and others. Unlike fair use, which is a set of guidelines, fair dealing in most countries is limited specific categories of use. If a particular use falls into one of these categories, a court will ascertain whether, on balance, it should be considered "fair." It is usually considered somewhat more predictable but also somewhat less flexible than the concept of “fair use” employed in the United States. Other resources:
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“Fair Use”A tenet of U.S. copyright law that describes the circumstances under which one can sometimes make use of protected works without first getting permission or paying the rights holder. Fair use is a tenet of U.S. copyright law, found in 17 U.S.C. section 107. It is often referred to as a “safety valve” for free speech, and is one of the two aspects of U.S. copyright law that help to prevent copyright’s monopoly from interfering with freedom of speech, another important U.S. right enshrined in the U.S. Constitution. (The other aspect of U.S. copyright law that seeks to balance the copyright monopoly against the public's interest in free speech is the idea/expression dichotomy.) Fair use is a set of guidelines, rather than a rule, and is evaluated on a case-by-case basis according to four non-exclusive factors. These are: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for, or value of, the copyrighted work . Because of its status as a "safety valve" for speech, fair use is often called upon or relied on by content users attempting to assert their rights under copyright law. However, because fair use is not clearly defined and can be hard to interpret, and because a copyright lawsuit can be extremely expensive, many users are scared or reluctant to rely on fair use when they use copyrighted works. This, in turn, has led to an effort by some groups to “reclaim fair use” for the public, and prevent what author Lewis Hyde has called “the third enclosure” of the common, that of the mind. Other resources:
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“Opt-in”When a person must choose to do something, rather than it happening automatically. Opt-in describes the default state any situation in which a user or participant has a choice of whether to do something or not, and where the default state is “not”. That is, a person must explicitly and consciously choose to take part. If no action is taken, the person will not participate, agree to terms, etc. | |
“Opt-out”When a person must choose to not do something, otherwise it will happen automatically. Opt-in describes the default state in any situation in which a user or participant has a choice of whether to do something or not, and the default state prior to any user involvement or active decision is “doing it”. That is, unless the user consciously and deliberately decides to not agree, or participate, and chooses "no", the assumption going forward is that he or she agrees to the conditions proposed. | |
“Safe Harbors”A clearly defined set of circumstances or actions with respect to a particular law that shield the actor from liability. A law with safe harbors says “These things will make you liable, but if you do “this”, then you are guaranteed to be safe". Safe harbors play an important role in areas of the law that are primarily governed by guidelines (which ultimately need to be interpreted by a court) , rather than rules. Since many people may lack the resources or legal sophistication to know or find out if their behavior is legal, a safe harbor provides certainty. In the context of copyright law, although it is also used as a generic term for the limits of “safe” activity”, safe harbors are most often encountered with respect to Section 512 of the United States’ Digital Millennium Copyright Act, “Limitations on liability relating to material online”, which describes various ways in which Internet content providers can ensure that they will avoid liability for the behavior of their users and patrons. The most important of these is the “notice and takedown” proceeding. Note: “Safe harbor” may also refer to a U.S. – EU agreement regarding the safety and privacy of personal data and databases. See also:
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“Sweat of the brow”"Sweat of the brow" refers to the effort put into something, and any value created as a result. If you work hard at something, you sweat. Some translations of the book of Genesis in the Christian Bible or Jewish Pentateuch have God telling Adam that as part of Adam's punishment, he will have to produce his food by the “sweat of his brow”. In copyright law, the logic runs as follows: someone who has invested a great deal of time and energy in producing something needs to be protected, otherwise someone else can take it (by copying) and reap all of the benefit with none of the labor. This is the “labor theory” of property, historically associated with John Locke. However, most copyright regimes do not grant copyright in something simply because it is the result of hard work. There is typically an originality requirement as well. The United States has explicitly rejected the sweat of the brow theory, in the case Feist Publications v Rural Telephone, which dealt with the partial copying of a telephone directory. That being said, the EU grants protection in factual databases on what is essentially a “sweat of the brow” theory. See also:
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“Three-step Test”The Berne Convention’s Three-Step Test describes the criteria by which a participating country can have its own unique limits or statutory exemptions on copyright law without violating the terms of the Convention. The three steps come originally from Article 9(2) of the Berne Convention, which reads: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This language can be broken out into the following three steps. 1) The exemptions must be for special cases or types of creative work only; 2) The exemptions allowed must not conflict with the “normal’ exploitation of the work that copyright usually makes possible, and; 3) the exemptions must not unreasonably prejudice the legitimate interests of the author. This language has since been exported -- with important modifications -- to a number of other international copyright treaties, including the TRIPS agreement, several WIPO treaties, and the EU Copyright Directive. The wide range of contemporary interpretations of the three-step test is discussed in Module 2: The International Framework. See also:
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“Three-Strikes” LawsA law where the third offense results in more serious penalties. A “three-strikes” law is a reference to baseball, where it is “three strikes and you are out”. Such laws have stronger penalties following a third infraction. In the copyright context, three strikes laws are copyright enforcement statutes where an Internet user’s Internet access can be summarily cut off after three accusations of copyright infringement. While strongly supported by the content industry and institutional rights-holders, these laws have come under a great deal of criticism from Internet users, advocacy groups, Internet service providers and libraries for heavily favoring content providers and rights-holders over the public. This is because these laws penalize users based on accusations ( received complaints about a user), not proven infringement, so there is a strong sense of “guilty until proven innocent”. Further the procedures for making an accusation are highly streamlined, whereas the procedures for challenging them are difficult. Such laws have been proposed or passed in France, South Korea, New Zealand and Canada, among others, although some have failed to pass or been struck down. See also:
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