{"id":2166,"date":"2017-02-15T21:09:53","date_gmt":"2017-02-15T21:09:53","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=2166"},"modified":"2025-11-11T13:47:12","modified_gmt":"2025-11-11T13:47:12","slug":"copyright-digital-media","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/copyright\/copyright-digital-media\/","title":{"rendered":"Copyright and digital media"},"content":{"rendered":"

Digital Millennium Copyright Act\u00a0\u00a0<\/a><\/strong><\/p>\n

The growth of digital media led to the December 1996 international convention on copyright protections under the World Intellectual Property Organization<\/a> (WIPO is the agency that enforces the Berne Convention).\u00a0 The US joined digital copyright enforcement with the DMCA, passed unanimously by the US Congress in 1998.<\/p>\n

The WIPO copyright treaty, and the DMCA,\u00a0 extend copyright protections into the digital realm on a consistent international basis and provide an ongoing mechanism for rule making.<\/p>\n

While the DMCA does limit the liability of\u00a0 online service providers (in line with\u00a0 Section 230), it has a unique “notice and takedown<\/a>” provision for copyright enforcement through online services.\u00a0 This exemption was adopted by the European Union in 2000.<\/p>\n

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Sidebar:\u00a0 \u00a0Using the DMCA to defend\u00a0 Pepe\u00a0<\/span><\/b><\/span><\/p>\n

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Pepe the Frog<\/p><\/div>\n

Ohio cartoonist Matt Furie was fed up. \u00a0The “alt-right” had stolen his creation, Pepe the Frog<\/b><\/span><\/a>, and \u00a0turned it into an icon of \u00a0hatred and white power. \u00a0So, in the summer and fall of 2017, his attorneys \u00a0began sending \u00a0a series of <\/b>cease-and-desist letters<\/b><\/span><\/a> to people on the far right who were infringing his copyright. \u00a0They also issued Digital Millennium Copyright Act takedown requests to Reddit and Amazon, notifying them that the use of Pepe by the alt-right on their platforms is copyright infringement, and that they would have to start taking down posts and books that misused the icon. \u00a0“The message is to the alt-right is clear\u2014stop using Pepe the Frog or prepare for legal consequences,” said Motherboard magazine<\/span><\/a>.\u00a0 \u00a0 \u00a0 \u00a0\u00a0<\/span><\/p>\n

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The Real Joe Smith calls out Trump for using Pepe.<\/p><\/div>\n

Update: In May 2025,\u00a0 President Donald Trump placed Pepe in the background of a “mission from God” message that he or his associates created. In the post to the left,\u00a0 Trump’s use of Pepe is called out<\/a> on Instagram by “The Real Joe Smith.”<\/p>\n

Extremist right-wing media, such as Alex Jones’ Infowars,\u00a0 \u00a0tried to claim<\/span><\/a> that Pepe was really a derivative of “El Sapo Pepe” of Argentina.<\/span><\/a> Since El Sapo is a distinctly different looking children’s cartoon created in 1988, the courts did not find this argument convincing, and, facing a likely loss, Infowars settled the case in June, 2019\u00a0 with a $15,000 out-of-court settlement in Furie’s favor.<\/span><\/a>\u00a0 Louis Tompros, Furie\u2019s lawyer, told the Washington Post: \u201cThe goal of this was not really about making money and certainly not about going after Alex Jones \u2026 The goal is to make sure the use of Pepe in association with hateful images and ideas stops.\u201d<\/span><\/p>\n

In the fall of 2019, pro-democracy demonstrators in Hong Kong adopted Pepe without the right-wing context found in the US. Furie was happy. “Pepe for the people,” he said.<\/span><\/p>\n

\u00a0\u00a0<\/span>Furie’s letters and DMCA takedown requests are standard legal tools available for artists who try to maintain rights to their creations.\u00a0\u00a0<\/span><\/p>\n

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\nSimilar use of the DMCA took place around 2016, New York cartoonist Sarah Anderson noticed that her cartoons were being stolen by the same kind of folks who were misappropriating Matt Furie’s work.\u00a0 \u00a0She\u00a0 wrote about her concerns in December 2022 article in the New York Times: <\/a>\u00a0“The alt-right manipulated my comic, and then AI took it.”\u00a0 \u00a0Anderson’s comics are available at Tapas Comics<\/a>.<\/p>\n

Update:\u00a0<\/strong> In 2025, people protesting ICE raids and\u00a0 national guard deployments to Portland, OR and Seattle, WA, adopted a similar frog as a symbol of protest<\/a>. While copyright law could only marginally protect Pepe, cultural change mooted the old argument. <\/p>\n

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Background on copyright cases and digital technologies\u00a0<\/strong><\/p>\n

Over time, courts\u00a0 have tended to increase enforcement of copyright laws, in part because of the way new digital technologies have allowed multiple generations of copies to be produced at the same quality level as the original.\u00a0 The baseline case was Sony, 1984, involving video cassette recorders (VCR). The recording devices were allowed for home video recording. But similar devices and circumventions of copyright protections were not allowed in the MGM case 20 years later.<\/p>\n

** Sony v. Universal City Studios, 1984.<\/strong>\u00a0 Universal sued to block the spread of Sony VCRs. The Supreme Court said that even though 100 percent of the\u00a0 material was often copied, the purpose of its use was legitimate if it was non-commercial \u201ctime shifting\u201d for home viewing. This ruling was central to the arguments in A & M v. Napster.<\/p>\n

** A&M Records v. Napster<\/strong>, 239 F.23d 1004 (9th Cir. 2001) \u2013Time\u00a0 shifting as per Sony v. Universal City not valid when dissemination was deliberately widespread. MP3.com and Kazaa also embroiled in legal disputes over music\u00a0\u00a0 sharing. More on P2P networks and their legal problems at this\u00a0Wired archive site<\/a>.<\/p>\n

** MGM Studios Inc. v. Grokster Ltd.<\/a>\u00a0<\/strong>125 US 2764, 2005 \u2014 File sharing systems allow contributory copyright infringement when their principal object is the dissemination of copyrighted material to people who post or download music files. One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party\u00a0 action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device\u2019s lawful uses.<\/p>\n

Stuck between the Sony rule and the problems presented by new P2P software, the court developed a\u00a0 theory of secondary liability for copyright infringement \u2013 the Inducement Theory.\u00a0 Some thought that this wasn\u2019t needed, and that the Sony rule could have allowed courts to consider evidence of intent.<\/p>\n

The Inducement Test states that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court goes to great pains to stress that the inducement rule premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or\u00a0 discourage innovation having a lawful promise.<\/p>\n

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