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Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) is a controversial law in the United States of America that amended title 17 of the US Code, which deals with copyright. Passed on October 12, 1998 by a unanimous vote in the United States Senate, the DMCA gave copyright holders many new powers.

Table of contents

1 Overview
2 DMCA Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act
3 DMCA Title II: Online Copyright Infringement Liability Limitation Act
4 DMCA Title III: Computer Maintenance Competition Assurance Act
5 DMCA Title IV: Miscellaneous Provisions
6 DMCA Title V: Vessel Hull Design Protection Act
7 Test Cases
8 Public appeal for comments
9 External links
10 Other References

Overview

The lobbyists who wrote the DMCA claim that it was needed in order to implement the WIPO Copyright Treaty into US law but essentially those same lobbyists were responsible for the creation of that treaty in the first place. Other legal experts claim that all necessary laws were in place for WIPO compliance before the DMCA was passed.

The DMCA has two major parts. The first makes it illegal to deal with "circumvention devices", devices that give you access to a copyrighted work. The second gives ISPs a "safe harbor" from copyright liability and litigation for hosting copyrighted files, as long as they take down copyrighted files quickly after being notified. (Example: I post a Madonna MP3 to my Earthlink web site. Madonna sends a letter to my ISP pointing this out. If my ISP takes the MP3 down quickly, they cannot be sued for copyright infringement.) It also requires that the ISP hand over information about subscribers to copyright holders upon request (a "DMCA subpoena", which doesn't have any judicial oversight).

As for the first part, threats of DMCA-related litigation may have had more effect upon would-be defendants than the DMCA itself. Components of the DMCA may also violate the First Amendment of the United States Constitution, because they make it illegal to publish source code that can be used as cirucmvention device. However, no cases involving the DMCA have reached the Supreme Court. The fact that defending such a lawsuit to the Supreme Court would cost millions has caused most people threatened with legal action to settle or remove offending content.

For the second, some are concerned that it causes ISPs to be overly cautious about hosting copyrighted material, and encouraging them to take down any material they're requested too. Many are also concerned that DMCA subpoenas invade the privacy of Internet users.

There are efforts in Congress to modify the Act. Richard Boucher, a Democratic congressman from Virginia, is leading one of these efforts by introducing the 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 passed, would deal with the devices used to access digital content and would be even more restrictive than the DMCA.

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

The DMCA was controversial due primarily to the changes here, which added chapter 12 to copyright law. Specifically, section 1201. Paragraph (a) of section 1201 was the declaration that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title." See: software cracking and software piracy. Also prohibited were manufacturing or distributing technology which is principally designed, or used, for circumventing access. Critics pointed out that this broad ban applied not only to access controls that enforce the rights of copyright holders, but also to virtually any restrictions content providers may wish to impose. Thus, while the DMCA claims in paragraph (e) not to affect fair use rights, in practice many such rights may be curtailed. Scientists and members of the computer programming community, some of the most vocal opponents of the DMCA, have also objected to its potential to stifle computer research and development.

Limited exemptions from the ban on circumvention are provided for academic institutions and libraries, but the law does not make clear how such institutions are to obtain the technology for legal circumvention as distribution of this technology is prohibited. Supporters of the law, who included many software companies, many publishers, and much the entertainment industry, contended that the provisions of the DMCA were necessary to combat internet copyright infringement.

The anti-circumventions provisions have been used for such things as preventing the distribution of programs to allow robotic dogs to do tricks the original maker didn't want them to do.

DMCA Title II: Online Copyright Infringement Liability Limitation Act

The Online Copyright Infringement Liability Limitation Act (OCILLA) adds section 512 to copyright law and primarily creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability.

A controversial use of this title in 2003 was the use by the RIAA of the subpoena provisions in 512(h) to obtain the identity of ISP customers. On 20 December 2003 Verizon prevailed on appeal in a case seeking to prevent such disclosures.

In late 2003 Diebold Election Systems used the takedown notice provisions of OCILLA to demand that memos that are "allegedly" written by Diebold employees be removed but subsequently ceased making such requests. Others also see these take down notices as being contrary to the First Amendment free speech protection of free speech as a necessary part of the copyright provisions of fair use. [1]

See the article on the OCILLA for a more detailed description, requirements for obtaining protection and cases.

DMCA Title III: Computer Maintenance Competition Assurance Act

This small change modified section 117 of copyright law so that those repairing computers could make certain temporary, limited copies while working on a computer.

DMCA Title IV: Miscellaneous Provisions

This title 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 Act

This added sections 1301 through 1332 to add protection for boat hull designs.

Test Cases

The Church of Scientology is one of the first organizations to make use of the Digital Millennium Copyright Act. In June of 1999, Scientology used the controverisal law to force AT&T Worldnet to reveal the identity of a person who had been posting anonymously to alt.religion.scientology with the pseudonym of "Safe."
The MPAA started a DMCA lawsuit on January 17, 2000 against distributors of DeCSS.
Edward Felten clashed with the RIAA over the right to publish research on SDMI.
On July 16, 2001, Dmitry Sklyarov, a Russian citizen, was arrested for allegedly violating this provision of the law. Protests ensued, which were coordinated from the website www.freesklyarov.org. Possibly as a result of these protests, the US government has agreed to drop all charges filed against Dimitry, provided that he testify at the trial of his company, Elcomsoft. In November 2002, ElcomSoft was found not guilty of all four charges under the DMCA.
In February 2002, lawyers working for Blizzard Entertainment threatened legal action under the DMCA against the developers of bnetd, a freely available clone of battle.net, a proprietary server system used by all Blizzard games on the Internet. Blizzard claims that these servers allow circumvention of its CD key copy protection scheme. As a potentially important test case, lawyers from the Electronic Frontier Foundation became involved, and as of June 2002, negotiations were still underway to settle the case without a trial. See Blizzard Entertainment.
The Scientology organization also used the law to force the Google search engine to erase its entries on the popular anti-Scientology Web site Operation Clambake in March 2002, though the entry was reinstated after Google received a large number of complaints from Internet users.
A lawsuit filed on December 30, 2002 by the Lexmark printer company against Static Control Components for creating a chip designed to allow the manufacture of compatible printer cartridges; Lexmark won a preliminary injunction.
A lawsuit by the Chamberlain Group, a manufacturer of automatic garage door openers, against Skylink for its compatible remote control device.
The Recording Industry Association of America sued Verizon Communications to obtain the name of a Kazaa subscriber who allegedly shared hundreds of music recordings. A District Judge ordered Verizon to disclose the information in January 2003. Verizon is to appeal.
In October 2003, SunnComm threatened to sue Princeton student Alex Halderman under the DMCA for circumventing SunnComm's MediaMax protection by holding down the shift key to prevent autorun from activating. SunnComm has since backed down on the lawsuit.

Public appeal for comments

In 2002 the U.S. Copyright Office launched a public appeal for comments on the DMCA in order "to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls". The first set of comments is posted here. Further comments can be submitted, as described here.