Protecting Copyrights Online—The Digital Millennium Copyright Act (DMCA)

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA).⁵⁸ Congress created the DMCA to help protect copyrights in the digital world. It also contains provisions that help insulate internet service providers (ISPs) from the actions of their customers.

DMCA Basics

The DMCA has five titles. They are:

• Title I—This title implements two WIPO treaties. It contains provisions about technological measures used to protect electronic copyrighted works.
• Title II—This title is called the Online Copyright Infringement Liability Limitation Act. It limits the liability of online service providers for copyright infringement by users.
• Title III—This title is called the Computer Maintenance Competition Assurance Act. It allows computer technicians to make a copy of a computer program for maintenance or repair.
• Title IV—This title contains miscellaneous provisions.
• Title V—This title is called the Vessel Hull Design Protection Act. It creates a new form of IP protection for the design of vessel hulls.

Titles I, II, and III are discussed in this section.

Technology Protection Measures

Title I of the DMCA implements two WIPO treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA amended the Copyright Act (1976) to extend U.S. copyright law to creative works made by citizens in other countries. These changes were required as part of the WIPO treaties.

The WIPO treaties required two major changes. The first is that members of the treaties must prevent people from bypassing technological measures used to protect copyrighted works. Many digital products, such as DVDs, video games, electronic books, and websites, use access controls to protect certain types of content. For example, a website might password protect some sections so that only registered members can get to those sections.

The technology measures and tools that some businesses use to protect their content are referred to as digital rights management (DRM). Many large businesses in the entertainment industry use DRM to protect their digital works.

The DMCA forbids people from accessing protected copyrighted content by bypassing these access controls. They may not tamper with content protected by technological access controls. This provision intends to protect content that is transmitted electronically from copyright infringement. In addition, a person is not allowed to make or sell devices that would allow other people unauthorized access to a copyrighted work that is protected by these types of access controls.⁵⁹

Second, the DMCA also forbids the sale of devices that would allow other people to bypass technological controls to copy a copyrighted work. However, the DMCA does not prohibit people from actually bypassing technological controls on their own to copy a work. This is because copying might be necessary to use parts of a work under the fair use doctrine.

There are some exceptions to these anti-circumvention measures.⁶⁰ It may be possible for a person to bypass technological controls that prevent unauthorized access in these instances. Each of these exemptions has additional detailed terms that are described only briefly here. The exemptions include the following:

• Nonprofit libraries, archives, and educational institutions may bypass technology protection measures to make a good faith determination that they wish to obtain authorized access to the work.
• A person who has lawfully obtained a computer program may bypass technology protection measures to identify and analyze elements of the program in order to make sure it is compatible with other programs.
• A person may bypass technology protection measures and create tools to do so to research and identify weaknesses in encryption technologies.
• A person may bypass technology protection measures to protect children from certain material on the internet.
• A person may bypass technology protection measures when those measures are capable of collecting or sharing personally identifying information about a person’s online activities.
• A person may bypass technology protection measures and create tools to do so for testing the security of a computer system or network. The owner of the system must specifically authorize the testing.

Title I criminalizes the act of bypassing technological measures. A person who willfully violates the technology protection measures for profit can be held criminally liable. Penalties include both prison time (up to 10 years is possible) and monetary fines (up to $1,000,000 is possible). The law makes nonprofit libraries, archives, and educational institutions entirely exempt from its criminal liability provisions.⁶¹

FYI

Online Copyright Infringement

Title II of the DMCA is called the Online Copyright Infringement Liability Limitation Act. It limits the liability of an online service provider (OSP) for its customers’ copyright infringement.⁶² Online service providers lobbied hard for these provisions. They were concerned that they could be held liable for their users’ actions under some secondary liability legal theories. In these theories, an OSP could be held liable for a user’s actions if the OSP knew about them and contributed to them. This was worrisome to service providers whose entire function was to provide services to customers.

DMCA exempts OSPs from copyright infringement claims that result from the conduct of their customers if certain criteria are met. If they meet these criteria, they fall into a safe harbor. If an OSP qualifies for a safe harbor exemption, only the individual infringing customer is liable for monetary damages. The OSP’s service or network, through which the customer engaged in the copyright infringement, is not liable. The DMCA provides safe harbors for common OSP activities.⁶⁴ They are:

• Transitory communications (providing network communications services)
• System caching
• Storage of information on systems or networks at the direction of users (hosting)
• Providing information location tools (search engines)

The safe harbors do not require an OSP to monitor the content posted or transmitted by the OSP’s users for copyright infringement. To take advantage of any of the safe harbor provisions, the OSP must develop a policy of terminating the accounts of repeat copyright offenders. OSPs also must not interfere with any technological measures that copyright owners use to protect their copyrights. OSPs must also meet additional criteria for three of the safe harbors.

Under the transitory communications safe harbor section, an OSP is not liable for copyright infringement by its customers simply because the OSP provides digital transmissions, routing, or connections for the communicating content.⁶⁵ To use this safe harbor, an OSP must show the following:

• Someone other than the OSP initiated the transmission of content.
• The transmission was carried out through an automated process.
• The OSP does not select who receives the transmitted material except as an automatic response to the request of another person.
• No copy of the transmission is retained in a manner that makes it available to other recipients.
• OSPs transmit the material through its system without modification of its content.

This provision protects the OSP from user-initiated communications that the OSP automatically processes. In these situations where an OSP is merely transmitting material, it will not be liable for the alleged copyright infringement of system users.

Under the information storage and information location tools safe harbor provisions, an OSP also must show that users control what material they post online. OSPs also must show that they do not have actual knowledge of users’ infringing activities. OSPs must show that they do not profit from the user’s infringing activities. OSPs further must show that they take down or block access to infringing material when they receive proper notice from a copyright owner.

Computer Maintenance

Title III of the DMCA is called the Computer Maintenance Competition Assurance Act. It allows computer repair technicians to make temporary, limited copies of computer software while they are repairing a computer. The computer must already have a copy of the software program on it. These new copies cannot be used in any manner and technicians must delete them when the repair job is over. The DMCA allows a technician to make these copies to assist in repairing the computer.⁶⁷

DMCA Unintended Consequences

It has been over 20 years since the DMCA was enacted. Nonetheless, it still raises some concerns about unintended consequences. Most of the concerns are about the provisions of DMCA Title I and Title II. They include:

• Fears that Title 1 provisions will suppress legitimate activities such as research.
• Fears that the Title II provisions overburden OSPs.

Title 1 Concerns

There are many concerns about the anti-circumvention technology protection measures specified in Title I. Many scientists, educators, and industry groups are concerned that these provisions will stifle research. This is because of the criminal penalties that are attached to violating these provisions. There is already some indication that this concern is not unreasonable.

In 2001, the U.S. Federal Bureau of Investigation (FBI) arrested a security researcher from Russia for publishing software that bypassed access controls on e-books. This was allegedly a violation of DMCA’s technology protection measures. The researcher was arrested after making a presentation about the security issues at the Def Con conference in Las Vegas. Both the researcher and the Russian company that he worked for were charged under the DMCA. The charges against the researcher were dropped. In 2002, a jury acquitted the Russian company of charges that it violated the DMCA.

Other complaints about these provisions center on the fact that the anti-circumvention provisions hinder fair use and, therefore, free speech. These complaints ask about what happens when DRM-protected materials enter the public domain. How can they be properly used in the public domain if there are no available tools to remove DRM protection?

Title II Concerns

There are also concerns with Title II of the DMCA. Many people argue that it places too much of a burden on OSPs in responding to “notice and takedown” letters from copyright holders. Because the OSP must act on the notice to maintain its safe harbor protection, it might take down material inappropriately. Taking down material in such a broad manner could hamper free speech. Since the enactment of the DMCA, Google has received almost 5 billion requests to delete URLs that point to infringing content.⁶⁸