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 28, 1998 by a unanimous vote in the United States Senate, the DMCA gave copyright holders many new powers, while limiting the liability of online service providers from copyright infringement by their users.

Introduction
The 1998 Digital Millennium Copyright Act (DMCA), introduced by Rep. Howard Coble, R-NC) is the proper starting point for discussions of digital copyright law. It changed U.S. copyright law to make it a crime for an individual to design or sell technologies that circumvented digital protection technologies. The most significant class of these protection technologies is generally dubbed Digital Rights Management. That phrase generally refers to encryption-based technologies that scramble digital books, movies and music. The theory behind DRM is that when a consumer purchases a song through Apple’s iTunes, for example, the consumer receives the key to unscramble the digital song. An unauthorized user – one who obtains a copy over the Internet through a peer-to-peer network, for example – has no such key and is not easily able to unscramble the digital file and enjoy the song. The DMCA made it a crime for an individual to bypass or sell anti-piracy technologies. The new language criminalized “circumvention” technologies whether or not the act of copying the creative work was a violation of copyright law. Hence the 1998 law became very controversial for several years. Although some members of Congress seek modifications, advocates and critics alike view attempts to either tighter or loosen its provisions as a difficult battle.

Passage of DMCA
The impetus to pass the DMCA came from two 1996 treaties of the World Intellectual Property Organization (WIPO), a body of the United Nations. The treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty were promoted by supporters as an update of copyright law for the digital age. Media companies maintained that the law allowed them to build digital locks on their movies and songs, and to prosecute those who would crack those locks. In addition to criminalizing the circumvention of protection technologies and banning the manufacture or distribution of a device that could circumvent copy-protection – codified as Section 1201 of U.S. copyright law – the legislation created a “safe harbor” provision for Internet Service Providers (ISPs). This latter provision was enacted as Section 512 of U.S. copyright law. It shielded ISPs from secondary liability when their customers posted infringing content online. Section 512 was a crucial element in securing the support of then-powerful ISPs such as AOL, Microsoft’s MSN, and Yahoo!

Effects of DMCA
Critics of the DMCA countered that it still overwhelmingly sided with software, recording and motion picture industries – at the expense of hardware manufacturers and users of content. Library groups and other large users of content said that Section 1201 eroded their ability to make “fair use” of copyrighted material. Fair use, which has been part of U.S. copyright law for more than a century, and is codified in Section 107, allows a user to make limited use of copyrighted material without the permission of the owner.

Additional critics came from the research community. They argued that while the law created an exemption from Section 1201 for libraries and educational institutions, researchers would be barred from creating equipment and services – including research into Internet security – that might also enable copyright circumvention. Princeton University computer scientist Ed Felten ran into this problem when he was conducting research into a DRM technology called the Secure Digital Music Initiative. After a threatening letter from officials with the Recording Industry Association of America, Felten and the Electronic Frontier Foundation filed a declaratory judgment seeking assurance that his activities were not illegal. Although the court dismissed Felten’s case, EFF called the action a victory because RIAA backed down from its threats.

Copyright Office Exemptions to the DMCA
As a compromise to those who felt that the DMCA would undermine fair use, Section 1201(a)(1)(C) of the 1998 law instructs the Register of Copyrights to consider, on a triennial basis, whether non-profit archival or educational purposes are negatively impacted by the anti-circumvention ban. The latest round of reconsideration concluded in 2006, when the Copyright Office created six exemptions, all of which expire in 2009, when the office is scheduled to undertake another such review. The first examination took place in 2000 and created two exemptions; the 2003 rulemaking created four exemptions. The law instructs exemptions from the circumvention ban so as to minimize the impact on criticism, teaching and news reporting.

Under the 2006 exemptions, which run until October 27, 2009, the DMCA's anti-circumvention ban does not apply to:


 * 1) Audiovisual works at a university’s film departments when making compilations of portions for educational use;
 * 2) Computer programs using hardware, such as dongles, if the dongles prevent access to content due to malfunction or age (a dongle is an electronic device that must be attached to a computer in order for it to use protected software) ;
 * 3) Computer programs and video games distributed in formats that have become obsolete, if done for the purpose of preservation or archival reproduction of published digital works by a library or archive;
 * 4) Literary works distributed in ebook format where access controls prevent user's ability to read the ebook aloud or to render the text into a specialized format;
 * 5) Firmware-computer programs that enable wireless telephone handsets to lawfully connect to a wireless telephone communication network;
 * 6) Sound recordings and audiovisual works in CD format for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities that compromise security of personal computers.

A number of exemptions considered but rejected included "space-shifting," or moving a copyrighted work from one device to another, literary works distributed in electronic audio format by libraries, fair use for all works, regionally coded digital video discs, and audiovisual works and sound recordings protected by a broadcast flag.

Digital Media Consumers' Rights Act
Rep. Rick Boucher (D-Va.) has been at the forefront of efforts to change the DMCA. In 2003, he introduced the Digital Media Consumers’ Rights Act of 2003 and reintroduced in two years later as the Digital Media Consumers’ Rights Act of 2005 with Rep. John Doolittle (R-Calif). The bill would have amended the DMCA to allow individuals seeking to make fair use of movies and songs the ability to crack digital locks for non-infringing purposes. It also would have required the Federal Trade Commission to oversee a program whereby copy-protected CDs would require warning labels.

In the 110th Congress, Boucher has re-introduced a modified version of the bill, which is now called the Freedom And Innovation Revitalizing U.S. Entrepreneurship (FAIR USE) Act of 2007. The new bill, whose bill number – (H.R. 1201) – mirrors the section of the copyright law that it aims to amend – is again co-sponsored by Doolittle. The measure would ease hurdles in legal battles between innovators and copyright holders by providing six special circumstances allowing entities like libraries and archives to circumvent digital locks. It would also limit the fines, or statutory damages, for copyright infringement.



Specifically, the bill carves out five new exemptions varying from those of the Copyright Office, in addition to allowing circumvention for educational purposes. It would also enable circumvention for the purpose of avoiding commercial or objectionable content (i.e., skipping advertisements or nudity on feature film DVDs); for transmitting a work over a home or personal network as long as it is not uploaded to the Internet; to gain access to a work in the public domain; to gain access to work for the purposes of criticism, news reporting, or research; and to allow libraries and archives to meet requirements of 17 U.S.C. 108(a)(2), or to preserve or replace a purchased copy of a work.

Related SourceWatch resources

 * See the other articles at the Communications, Science and Intellectual Property Policy (U.S.) portal.

External resources

 * Full Text of the DMCA (HTML format)