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Digital Millennium Copyright Act

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Citation Edit

Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998), codified at 17 U.S.C. 512, 1201-05, 1301-22; 28 U.S.C. 4001 (full-text).

Background Edit

With the advent of digital media and the Internet as a means to distribute such media, large-scale digital copying and distribution of copyrighted works became easy and inexpensive. In response to this development, and to prevent large-scale piracy of digital content over the Internet, in 1997 the World Intellectual Property Organization (WIPO) responded with two treaties, the Copyright Treaty, and the Performances and Phonograms Treaty, to prohibit pirates from defeating the digital locks that copyright owners use to protect their digital content from unauthorized access or copying.

Specifically, Article 11 of the WIPO Copyright Treaty prescribes that contracting states:

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 restricts acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.[1]

The United States signed these treaties on April 12, 1997, and ratified them on October 21, 1998.[2]

To implement these treaties, Congress enacted Title I of the Digital Millennium Copyright Act (DMCA) on October 28, 1998, with the twin goals of protecting copyrighted works from piracy and promoting electronic commerce.[3] Congress accomplished these goals by enacting prohibitions relating to the circumvention of copyright protection systems (as set forth in 17 U.S.C. §1201), and the integrity of copyright management information (pursuant to 17 U.S.C. §1202).

The DMCA implements the WIPO treaties (and more). It criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (commonly known as Digital Rights Management (DRM)) and criminalizes the act of circumventing an access control, even when there is no copyright infringement itself. It also heightens the penalties for copyright infringement on the Internet and prohibits the removal or modification of any copyright management information contained in a work.

Passed on October 8, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA also amended Title 17 of the U.S. Code to extend the reach of copyright, while limiting the liability of online providers from copyright infringements by their users.

Provisions Edit

DMCA Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act Edit

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 has two major portions, one of which includes works covered by two treaties and gave the title its name[4] and the other which is often known as the DMCA anti-circumvention provisions.[5]

The latter provides remedies for the circumvention of copy prevention systems and required that all analog video recorders have support for a specific form of copy prevention commonly known as Macrovision built in. However, Section 1201(c) of the title clarified that the title does not change the underlying substantive copyright infringement rights, remedies, or defenses.

Title I also addresses the integrity of copyright management information pursuant to 17 U.S.C. § 1202.[6]

The title contains various limitations and exemptions, including for research and reverse engineering in specified situations. For further analysis of this portion of the Act and of cases under it, see DMCA Anti-circumvention provisions.

DMCA Title II: Online Copyright Infringement Liability Limitation Act Edit

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA") creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. Title II "protects qualified Internet service providers from liability for all monetary relief for direct, vicarious and contributory infringement"[7] and "preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment."[8]

OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to the person who posted the allegedly infringing material, if the OSP receives counter-notice from such poster claiming that the material in question is not, in fact, infringing. OCILLA also provides for subpoenas to OSPs to provide their users' identity.

DMCA Title III: Computer Maintenance Competition Assurance Act Edit

DMCA Title III modified Section 117 of the current copyright law so that those repairing computers could make certain temporary, limited copies of certain software while working on a computer. The Act legislative overruled the Ninth Circuit Court of Appeal's decision in MAI v. Peak.

The Act provides that a third party repairing a computer, with its owner's consent, does not infringe the copyright in the software "necessary" for the machine to be activated simply by automatically making a copy of that software in RAM when the computer is turned on, as long as the sole purpose in doing so is maintenance or repair of the computer, and provided that the third party destroys the copy of the software "immediately" after completing the repair or maintenance work.

DMCA Title IV: Miscellaneous ProvisionsEdit

DMCA Title IV contains an assortment of provisions:

  • Clarified and added to the duties of the Copyright Office.
  • Added ephemeral copy for broadcasters provisions, including certain statutory licenses.
  • Added provisions to facilitate distance education.
  • Added provisions to assist libraries with keeping copies of sound recordings.
  • Added provisions relating to collective bargaining and the transfer of movie rights.

DMCA Title V: Vessel Hull Design Protection ActEdit

DMCA Title V added sections 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs are not covered under copyright law, because they are useful articles whose form cannot be cleanly separated from their function.

ExemptionsEdit

In addition to the safe harbors and exemptions the statute explicitly provides, 17 U.S.C. 1201(a)(1), the DMCA requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make noninfringing uses of copyrighted works.

The [[exemption rules are revised every three years. Exemption proposals are submitted by the public to the Register of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Register and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle. Consequently, the exemptions issued in the prior rulemakings in 2000 and 2003 are no longer valid.

The current administratively-created exemptions, issued in November 2006, are:

  • Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors. (A new exemption in 2006.)
  • Computer programs and videogames distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. (A renewed exemption, first approved in 2003.)
  • Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. (Revised from a similar exemption approved in 2003.)
  • Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. (Revised from a similar exemption approved in 2003.)
  • Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network. (A new exemption in 2006.)
  • Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities. (A new exemption in 2006, made because Sony had distributed a highly malicious rootkit as part of a music compact disc copy protection.)

The Copyright Office approved two exemptions in 2000 and four in 2003.

In 2000, the Office exempted (a) "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and (b) "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness." (revised and limited in 2003 and again in 2006).

In 2003, the 2000 "literary works including computer programs" exemption was limited to "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete." 2003 also added an ebook exemption for text readers and an obsolete software and video game format exemptions, both of which were renewed in 2006.

The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006.[9]

Reform and OppositionEdit

There are efforts in Congress to modify the Act. Rick Boucher, a Democratic congressman from Virginia, is leading one of these efforts by introducing the Digital Media Consumers' Rights Act (DMCRA).

A prominent bill related to the DMCA is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), known in early drafts as the Security Systems and Standards Certification Act (SSSCA). This bill, if it had passed, would have dealt with the devices used to access digital content and would have been even more restrictive than the DMCA.

Timothy B. Lee, in a paper written for the Cato Institute, wrote:

The DMCA is anti-competitive. It gives copyright holders — and the technology companies that distribute their content — the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.[10]

CriticismsEdit

The DMCA has been criticized for forcing all companies producing analog video equipment to support the proprietary copy protection technology of a particular commercial firm (Macrovision). The producers of video equipment are forced by law to support the Macrovision technology to the financial benefit of Macrovision whereas those who build the video equipment get nothing in compensation.

The DMCA has been criticized for making it too easy for copyright owners to encourage website owners to take down infringing content and links when it may not in fact be infringing. When website owners receive a takedown notice it is in their interest not to challenge it, even if it is not clear if infringement is taking place, because if the potentially infringing content is taken down the website will not be held liable. The Electronic Frontier Foundation senior IP attorney Fred von Lohmann has said this is one of the problems with the DMCA.[11]

Many sites are receiving DMCA notices and taking down links to infringing material as a result. Because the links are taken down it is rarely challenged in court resulting in link liability being a grey area of the law, although based on previous legal cases it leans in favor of copyright owners.[12] Stephan Ott of LinksandLaw.com states that "linking to infringing content is unlawful and that is also what most of the courts say".[13]

Example of DMCA Takedown Provision Edit

An author notes that a company or individual infringed his or her copyright in published material without receiving their permission first, paying a fee or crediting the source of the information (plagiarism). If the author cannot find an arrangement with the offender he can address a DMCA takedown notice to the provider hosting the user website. This text contains several items to respond to. It can be sent by fax, ordinary postal mail or even put on a website at the disposal of the provider. Not all providers accept receipt of the DMCA takedown notices as scanned and signed images by email. Here is the template of the DMCA request that the author has to fill in and send to the alleged infringer:


DIGITAL MILLENNIUM COPYRIGHT ACT

1. Detailed identity of the copyrighted work that I believe has been infringed upon. This includes identification of the web page or specific posts, as opposed to entire sites. Posts must be referenced by either the dates in which they appear or the permalink of the post

>Include here the URL to the concerned material infringing your copyright (URL of a website or URL to a post, with title, date, name of the emitter), or link to initial post with sufficient data to find it easily.

2. Identity of the material that I claim is infringing upon the copyrighted work listed in item #1 above.

>Include here the name of the concerned litigeous material (all images or posts if relevant) with their complete reference.

3. Location of the author copyright notice (for information).

>Include here the possible URL of the page in which you have list or give detail about your copyright. This information is optional as all work of the mind are by default protected by the Copyright Berne Convention.

4. Information to permit our company, the provider, to contact you.

>Include here your email, fax or postal address to quickly get a feedback from the provider.

5. Statements

Reproduce the next statements:

I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by my registered copyright and by the law. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner of an exclusive right that is infringed.

Your signature

>Signature of the author

>Add your name here

In this context the DMCA does not require the complete postal address and private phone number of the author. Therefore, most companies do not list these two items in their policies (e.g., Google) and only need an email of contact in respect with the spirit of the law.

Only a few companies require the author to mention his complete address and phone number. The postal address and phone number will only be required in cases of counter notification emitted by the offender or if the author initiates a legal proceeding.

Impact on Research Edit

The DMCA has had an impact on the worldwide cryptography research community, since an argument can be made that any cryptanalytic research violates, or might violate, the DMCA. The arrest of Russian programmer Dmitry Sklyarov in 2001, for alleged violation of the DMCA, was a highly publicized example of the law's use to prevent or penalize development of anti-DRM measures. While working for Elcomsoft in Russia, he developed The Advanced eBook Processor, a software application allowing users to strip usage restriction information from restricted e-books, an activity legal in both Russia and the United States. Paradoxically under the DMCA it is not legal in the United States to provide such a tool. Sklyarov was arrested in the United States after presenting a speech at a conference, and subsequently spent several months in jail.

The DMCA has also been cited as chilling to legitimate users, such as students of cryptanalysis (including, in a well-known instance, Professor Felten and students at Princeton University[14]), and security consultants such as Niels Ferguson, who has declined to publish information about vulnerabilities he discovered in an Intel secure-computing scheme because of his concern about being arrested under the DMCA when he travels to the United States.

ReferencesEdit

  1. See WIPO Copyright Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105-17, art. 11 (1997); WIPO Performances and Phonograms Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105-17, art. 18 (1997) (same with respect to performers or producers of phonograms).
  2. See 144 Cong. Rec. 27,708 (1998) (Resolution of Ratification of Treaties).
  3. See H.R. Rep. No. 105-551 (II), at 23 (1998); S. Rep. No. 105-190, at 8 (1998) (The DMCA "is designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education"); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 454 (2d Cir. 2001); United States v. Elcom, Ltd., 203 F.Supp.2d 1111, 1129-30 (N.D. Cal. 2002).
  4. The treaties are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
  5. These provisions are intended to implement Article 11 of the WIPO Copyright Treaty, titled "Obligations concerning Technological Measures," which requires:
    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 restricts acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
  6. Article 12 of the WIPO Copyright Treaty, titled "Obligations concerning Rights Management Information," states:
    (1) 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.
    (2) As used in this Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.
  7. S. Rep. No. 105-190, at 20 (105th Cong., 2d Sess. 1998).
  8. Id. at 40.
  9. See U.S. Copyright Office, Oct. 27, 2000, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works; U.S. Copyright Office, Oct. 28, 2003, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works.
  10. Timothy B. Lee, Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act (full-text).
  11. See Fox commits copyright fraud.
  12. See Linking to infringing content is probably illegal in the US.
  13. See Linking law expert Dr. Stephan Ott talks about linking to pirated video.
  14. See RIAA challenges SDMI attack.

See also Edit

Some of the reported DMCA anti-circumvention cases:

External resources Edit


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