Digital Millennium Copyright Act
 | |
|---|---|
| Digital Millennium Copyright Act | |
| Full title | To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes. |
| Acronym/Colloquial name | DMCA |
| Enacted by the | 105th Congress |
| Effective Date | October 28, 1999 |
| Citations | |
| Public Law | Pub. L. 105-304 |
| U.S. Statutes at Large | 112 Stat. 2860 (1998) |
| Codification | |
| Act(s) amended | Copyright Act of 1976 |
| Title(s) amended | 5 (Government Organization and Employees); 17 (Copyrights); 28 (Judiciary and Judicial Procedure); 35 (Patents) |
| United States Code sections created | 17 U.S.C. §§ 512, 1201-1205, 1301-1332; 28 U.S.C. § 4001 |
| United States Code sections substantially amended | 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701 |
| Legislative history | |
| |
| Major amendments | |
| None | |
The Digital Millennium Copyright Act (DMCA) is a United States copyright law which criminalizes production and dissemination of technology whose primary purpose is to circumvent measures taken to protect copyright, not merely infringement of copyright itself, and heightens the penalties for copyright infringement on the Internet. 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 amended title 17 of the US Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users.
On May 22, 2001, the European Union passed the EU Copyright Directive or EUCD, similar in many ways to the DMCA.
Provisions
DMCA Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act
DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act has two major portions, one of which includes works covered by several treaties in US copy prevention laws and gave the title its name and the other which is often known as the DMCA anti-circumvention provisions. The latter implemented a broad ban on the circumvention of copy prevention systems and required that all analog video recorders have copy prevention built in.
DMCA Title II: Online Copyright Infringement Liability Limitation Act
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. OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if they restore the material upon notice from such users 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
DMCA Title III modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer.
DMCA Title IV: Miscellaneous Provisions
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 Act
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.
Exemptions
17 U.S.C. 1201(a)(1) 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 Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar 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 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 video games 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.)
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.[1]
Reform and opposition
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 of the Cato thinktank 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. [1]
Example of DMCA Takedown Provision
Please note: Wikipedia does not give legal advice.
An author notes that a company or individual infringed his or her copyright in publishing 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 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 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 back 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 (Google, Blogger) 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 (Go Daddy Software).
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.
Notes
- ^ See U.S. Copyright Office, Oct. 27, 2000, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, at http://www.copyright.gov/1201/anticirc.html ; U.S. Copyright Office, Oct. 28, 2003, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, at http://www.copyright.gov/1201/2003/index.html .
References
- Digital Copyright by Jessica Litman (2001), a history of the lobbying that led to the DMCA.
See also
Related US laws:
- The "No Electronic Theft" (NET) Act
- Copyright Term Extension Act (1998)
Proposed US legislation:
- Benefit Authors without Limiting Advancement or Net Consumer Expectations (BALANCE) Act of 2003
- The "Inducing Infringement of Copyrights Act" (INDUCE) Act (introduced 2004)
- Pirate Act (introduced 2004)
- Digital Media Consumers' Rights Act (DMCRA) (introduced 2003 & 2005)
- Digital Transition Content Security Act (introduced 2005)
Related non-US law:
DMCA anti-circumvention cases:
- Chamberlain v. Skylink
- Universal v. Reimerdes
- Dmitri Sklyarov
- Lexmark Int'l v. Static Control Components
DMCA notice-and-takedown issues:
- Online Copyright Infringement Liability Limitation Act (OCILLA) (more information about the DMCA 512 takedown provisions)
- DMCA takedown incidents
External links
DMCA information
- Text of the DMCA
- U.S. Copyright Office summary of the DMCA, (PDF format)
- U.S. Copyright Office homepage
- Title 17 of the U.S. Code, Cornell Law School
- Cybertelecom's DMCA information and background material
- Senate DMCA vote, by senator name, vote position, and home state (U.S. Senate roll call votes - 105th Congress - 2nd Session - Vote 137)
- Rep. Rick Boucher's website
- Directory of Service Provider Agents for Notification of Claims of Infringement
- Anti-DMCA, a website that has updates on DMCA lawsuits.
DMCA 512 Notification Policies, Exemplars, and Information
- Directory of Service Provider Agents for Notification of Claims of Infringement
- ChillingEffects.org, a clearinghouse of DMCA 512 notices and cease and desist letters
- Google's DMCA policy
- An ISP's fully automatic DMCA-notification procedure
- Project LUXORION DMCA (download in Word format, include explanations)
Categories
1998 in law | Computer law | United States copyright law | United States federal intellectual property legislation