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Digital Millennium Copyright Act

Provisions

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 portion includes works covered by several treaties in US copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

The second portion is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention created by Macrovision (now Rovi Corporation) built in, giving Macrovision an effective monopoly on the analog video-recording copy-prevention market. However, section 1201(c) of the title clarified that the title does not change the underlying substantive copyright infringement rights, remedies, or defenses. The title contains other limitations and exemptions, including for research and reverse engineering in specified situations.

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 counternotification provision that offers OSPs a safe harbor from liability to their users, if 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.

Title III: Computer Maintenance Competition Assurance Act

DMCA Title III modified of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer.

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.

Title V: Vessel Hull Design Protection Act

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

Anti-circumvention exemptions

In addition to the safe harbors and exemptions the statute explicitly provides, 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 non-infringing 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 administratively-created , 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 e-book format when all existing e-book 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 created in 2006, after a faulty copy protection system installed on Sony's compact discs had caused technical problems for many users.)

The Copyright Office approved two exemptions in 2000; four in 2003; and six in 2006. 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.

Linking to infringing content

The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent DRM (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.

There have been no cases in the US where a website owner has been found liable for linking to copyrighted material outside of the above narrow circumstances.

Notable court cases

MPAA vs. RealNetworks Inc.

In August 2009, the Motion Picture Association of America won a lawsuit against RealNetworks for violating copyright law in selling its RealDVD software, allowing users to copy DVDs and store them on a harddrive. The MPAA claimed that Real violated the DMCA by circumventing anti-piracy measures ARccOS Protection and RipGuard, as well as breaking Real's licensing agreement with the MPAA's Content Scrambling System.

Viacom Inc. vs. YouTube, Google Inc.

On March 13, 2007, Viacom filed a lawsuit against YouTube and its corporate parent Google for copyright infringement seeking more than $1 billion in damages. The complaint was filed in the U.S. District Court for the Southern District of New York.
Viacom claims the popular video-sharing site was engaging in “massive intentional copyright infringement” for making available a contended 160,000 unauthorized clips of Viacom’s entertainment programming. Google lawyers say they are relying on the 1998 Digital Millennium Copyright Act to shield them from liability.
On March 11, 2008 the judge ruled that Viacom cannot seek punitive damages against YouTube. Massive statutory damages, however, remain on the table.
Viacom's case against Google, which is being run in conjunction with a separate class action filed by the Premier League and several music publishers, is unlikely to go to trial until 2009 or 2010.

IO Group Inc. vs. Veoh Networks Inc.

On June 23, 2006 IO Group, Inc. filed a complaint against Veoh Networks, Inc. in the U.S. District Court for California's Northern District.
IO Group alleged that Veoh was responsible for copyright infringement by allowing videos owned by Io Group to be accessed through Veoh’s online service without permission over 40,000 times between the dates June 1 and June 22.
Veoh is a Flash video site relying on user contributed content. IO Group argued that since Veoh transcoded user uploaded videos to Flash format it became a direct infringer and the materials were under their direct control, thereby disqualifying them for DMCA safe harbor protection.
The ruling judge disagreed with the argument stating that "Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the thirdparty software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users."
The Court has granted the Veoh’s motion for summary judgment, on the basis of the DMCA, holding that the defendant's video-sharing web site complied and was entitled to the protection of the statute's "safe harbor" provision.

Vernor v. AutoDesk

After numerous stifling DMCA takedown notices on his eBay listings Timothy S. Vernor sued AutoDesk in August 2007 for abusing the DMCA and disrupting his right to sell used software he bought at a garage sale. A federal district judge in Washington State dismissed AutoDesk's argument that the software's license agreement preempted the seller from his rights under the first-sale doctrine.

Criticisms

The DMCA has been criticized for forcing all producers of analog video equipment to support the proprietary copy protection technology of Macrovision, a commercial firm. 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 allegedly infringing content and links which may in fact not 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.
Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act, quoting results from a 2005 study by Californian academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse. Takedown notices targeting a competing business made up over half (57%) of the notices Google has received, the company said, and more than one-third (37%), "were not valid copyright claims."

Effect on research

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 infringement 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 DEF CON and subsequently spent nearly a month 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 Edward Felten and students at Princeton), 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 US.

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.

On the tenth anniversary of the DMCA, the Electronic Frontier Foundation documented harmful consequences of the anti-circumvention provisions. They document that the DMCA 1) stifles free expression, such as in its use against Russian programmer Dmitry Sklyarov, Princeton Professor Edward Felten, and journalists; 2) jeopardizes fair use; 3) impedes competition, such as blocking aftermarket competition in toner cartridges, garage door openers, and enforcing walled gardens around the iPod; and 4) interferes with computer intrusion laws.