The Digital Millennium Copyright Act (DMCA) was passed on October 28, 1998 to address the relationship between copyright and the internet. Specifically, the updates were to 1) establish protection for online service providers if individual users were engaging in copyright infringement 2) provide legal protections to copyright owners to induce them into sharing work online and 3) make it unlawful to provide false copyright management information.
Copyright owners have the exclusive rights for a period of time to reproduce, prepare derivative works, distribute copies, and display the work publicly; they can legally enforce these rights subject to defenses such as fair use.
When copyrighted materials are in a digital format, such as digital streaming movies, graphic images, or software, they can be reproduced and manipulated quickly, easily, and in mass quantities. To protect these kinds of works from illegal reproduction, copyright owners often implement digital or technical protection devices such as encryption, passwords, or digital watermarks, but copyright infringers may still be able to circumvent these measures. The DMCA is an attempt to legally enforce digital protection systems yet limit liability to online service providers users engage with to distribute infringing material.
Provisions of the DMCA
- No circumventing digital protections: A ban on circumventing a technological measure or access control technology.
- No distribution of devices designed to circumvent digital protections: A ban on trafficking in technology that circumvents access-control measures.
- No selling of anti-security tools: A ban on trafficking in technology that circumvents technological protection measures that restrict the ability to copy a copyrighted work.
- No removing copyright information: A ban on the alteration of copyright management information.
- Safe harbor for Internet Service Providers: A system for which Internet Service Providers (ISPs) can escape liability for vicarious or contributory copyright infringement.
Provision 1: Circumventing Digital Protections
The first provision of the DMCA prohibits defeating the access control measure that protects or limits access to digital information. Defeating the access control measure, or circumventing a technological measure, means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner. Access control measures are found in many digital items such as streaming movies, video games, or computer games. The exceptions discussed below are notable here, which allow the above circumventions in limited educational and library-related circumstances, as well as sometimes allowing reverse engineering of certain devices.
Provision 2: Distribution of devices that circumvent digital protections
The second provision bans trafficking in devices that circumvent access controls. In order for an individual to defeat an access control measure, they can create software that will allow unauthorized access to the copyrighted information. Use of the program violates Provision 1: Circumventing digital protections, and the sale or distribution of this computer program is unlawful as well. As an example, courts have held against sites hosting BitTorrent technology used in the contributory infringement inducing third-party users to download copyright-protected movies and television shows.
Provision 3: Selling anti-security tools
The third provision bans trafficking in technology that circumvents technological measures that limit the ability to reproduce a copyrighted work. An example of this kind of technological protection is an encoding technique that prevents an audio file from being played and therefore copied on a computer. Think of this as a second level of protection, such as the indelible dye packs hidden in bundles of cash stolen from banks. This provision would prevent users from distributing the work-around for playing the audio file on a computer. While the device can legally be played on a computer under the first sale doctrine, trafficking in a device that allows a user to play the audio file on a computer is nonetheless illegal.
Provision 4: Removing copyright management information
The fourth provision bans the alteration of copyright management information or providing false copyright management information. Copyright management information is information conveyed in connection with a copyrighted work for the purposes of identifying its origin; such information could include the title, author, name of the copyright owner, terms and conditions for use of the work, and identifying numbers or symbols referring to the above information. This does not include information about the user of a work or a copy of the work. Copyright management information is like serial numbers on commercial products such as computers or cars. This provision prevents a user from altering this information prior to passing the copyrighted materials on to others.
Provision 5: Safe harbors from liability for Internet Service Providers
The fifth and last provision of the DMCA is designed to protect Internet Service Providers, allowing the ISPs to escape liability for the actions of its users so long as they did not know or have reason to know that their users were violating a copyright holder’s rights.
Potential Defenses to DMCA Violations
The law says that a protection measure must effectively control access to a work. One court has commented that it does not need to be a strong means of protection, and entering into a license agreement with the copyright owners satisfies this requirement under the statute. The court stated a technological measure effectively controls access to a copyrighted work if its function is, in fact, to control access. The court has also referenced the legislative history, which stated if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work “[t]his test, focuses on the function performed by the technology.” Basically, “effectively control access” to a work requires only a mode of operation that accomplishes this objective and it does not need to be efficient. Presumably, if the protection does not work at all then it does not satisfy the requirements of the statute.
What about fair use?
Though there is significant debate on the issue, judicial decisions have held that the fair use defenses under Section 107 of the Copyright Act do not apply to the DMCA. A significant policy debate continues as to whether this is in the public’s interest, but under present law, it is not wise to assume that one can violate the DMCA for a fair use purpose. Consequently, at present, one cannot circumvent digital copy protections, as prohibited by the DMCA, in order to access a copyrighted work for a fair use purpose.
There are some exceptions to the provisions of the DMCA, which allow, for example, circumvention of copyright protections in specific situations or for specific purposes. These exceptions are limited in scope, however, and it would be wise to closely reference the DMCA directly or consult an attorney to determine if those exceptions apply to you. Some examples of exclusions from liability that are included in the DMCA are:
- Library or educational use
- Law enforcement or governmental use
- Device repair
Violation of the DMCA may carry substantial civil and financial penalties. The minimum fine is $750 for a downloaded file while criminal penalties may be up to $250,000 and five years in prison.