Digital Millennium Copyright Act

Digital Millennium Copyright Act

Long 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.
Acronyms (colloquial)	DMCA
Enacted by	the 105th United States Congress
Effective	October 28, 1998
Citations
Public law	Pub. L. 105-304
Statutes at Large	112 Stat. 2860 (1998)
Codification
Acts amended	Copyright Act of 1976
Titles amended	5 (Government Organization and Employees); 17 (Copyrights); 28 (Judiciary and Judicial Procedure); 35 (Patents)
U.S.C. sections created	17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001
U.S.C. sections amended	17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701
Legislative history
Introduced in the House of Representatives as H.R. 2281 by Rep. Howard Coble (R-NC) on July 29, 1997 Committee consideration by House Judiciary Committee (Subcommittee on Courts and Intellectual Property); House Commerce Committee (Subcommittee on Telecommunications, Trade, and Consumer Protection) Passed the House on August 4, 1998 (voice vote) Passed the Senate on September 17, 1998 (unanimous consent) Reported by the joint conference committee on October 8, 1998; agreed to by the Senate on October 8, 1998 (consent) and by the House on October 12, 1998 (voice vote) Signed into law by President Bill Clinton on October 28, 1998

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet.^[1][2] Passed on October 12, 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 United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

The DMCA's principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries. This exemption was adopted by the European Union in the Electronic Commerce Directive 2000. The Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

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, amends U.S. copyright law to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. 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 (17 U.S.C. 1201) 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. The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations. Although, section 1201(c) of the title stated that the section does not change the underlying substantive copyright infringement rights, remedies, or defenses, it did not make those defenses available in circumvention actions. The section does not include a fair use exemption from criminality nor a scienter requirement, so criminal liability could attach to even unintended circumvention for legitimate purposes.^[3]

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 infringement liability, provided they meet specific requirements.^[4] OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim 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 when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users' identity.

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. It reversed the precedent set in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).

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 phonorecords 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 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs were not considered covered under copyright law because boats are useful articles whose form cannot be cleanly separated from their function.^[5][6]

Anti-circumvention exemptions

In addition to the safe harbors and exemptions the statute explicitly provides, 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 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, 2003, 2006, 2010 and 2013 are no longer valid.

Section 1201 Study

After much criticism (see below), on December 29, 2015, the Copyright Office initiated a study to assess the operation of section 1201 and the triennial rulemaking process. This is different from usual public comments on exemption proposals. It includes the role of the anti-trafficking provisions and permanent exemptions, and the requirements of the rulemaking itself. The Office has issued a Notice of Inquiry requesting public comment.^[7]

Several comments were posted by individuals and organizations.^[8] An individual recalls that the Copyright Clause has limitations.^[9] Association of American Publishers et al. hold there is no need to amend the statute or to significantly alter the rulemaking. They are happy with the protection they are being granted, including anti-trafficking provisions, and talk of placing the cart before the horse, when they argue about requiring a proof of the mindset that consumers would have when utilizing circumvention tools before actual acts of circumvention occur. In their opinion, the meaning of Section 1201 is to extend, not merely duplicate, copyright holder's rights.^[10] Society of American Archivists say they are not aware that the anti-trafficking provisions of section 1201(a)(2) and 1201(b) have had any impact in deterring copyright infringement. They do know, however, that the provisions have created an absurd, Catch-22 situation for any archives that sought to adhere to the letter of the law.^[11] iFixit also talks of Catch-22 on stressing that since it is up to proponents to show that an exemption is relevant, they need to show that there’s overwhelming market demand if only it were legal.^[12] Rapid7 notice that DMCA adversely affects good faith security research by forbidding researchers from circumventing technological protection measures (TPMs) to analyze software for vulnerabilities.^[13] Cyberlaw Clinic at Harvard Law School points out that the rulemaking is a complicated, ad hoc, and unduly burdensome process.^[14]

The Learning Disabilities Association of America (LDA) commented that circumventing DRM restrictions to meet accessibility needs deserves a permanent exception.^[15] Entertainment Software Association gives a vivid and detailed description of a flourishing market which is only possible because of DMCA.^[16] They are deeply concerned about people with disabilities, but that concern is already being taken care of by the copyright holders, so that no permanent exception is needed.^[17]

Comments have also been submitted by, among others, R Street Institute^[18] American Association of Law Libraries,^[19] Business Software Alliance,^[20] Alliance of Automobile Manufacturers,^[21][22] Association of American Universities et al.,^[23] Copyright Alliance,^[24][25] Association for Computing Machinery U.S. Public Policy Council,^[26] the Software and Information Industry Association,^[27][28] DVD Copy Control Association (“DVD CCA”) et al.,^[29] Microsoft Corporation,^[30] Association for Competitive Technology,^[31] Public Knowledge,^[32][33] American Automobile Association.^[34]

In June 2017, the Copyright Office published a report where it "shares the concern" that Section 1201 can affect activities unrelated to copyright infringement, but it does not advise to amend it because it could "severely weaken the right of copyright owners to exercise meaningful control over the terms of access to their works online", which they believe is "essential to the development of the digital marketplace for creative content".^[35]

Previous exemptions

The Copyright Office approved two exemptions in 2000; four in 2003; five in 2012, six in 2006 and 2010, and ten in 2015.

2000, 2003, 2006 rulemakings

In 2000, the first rulemaking, 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" and this exemption was renewed in both 2006 and 2010. The 2003 exemption for text readers of ebooks was renewed in both 2006 and 2010. The 2003 exemption for obsolete software and video game formats was renewed in 2006 but not in 2010. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006. The 2006 exemption for sound recordings allowed after security flaws were found in a copy protection system on some Sony CDs was not renewed in 2010. An exemption covering the audiovisual works included in the educational library of a college or university's film or media studies department was not renewed in 2010. This exemption was replaced with an exemption on DVDs protected by the Content Scrambling System when circumvention is for the purpose of criticism or comment using short sections, for educational, documentary or non-profit use. The 2006 exemption for wireless handsets connecting to wireless networks was revised in 2010 to specify used handsets and require authorization from the wireless network operator. Another exemption for wireless handsets was introduced in 2010 specific to interoperability software on the phone itself.^[36]

2010 rulemaking

The 2010 exemptions, issued in July 2010, are:

• Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
  • Educational uses by college and university professors and by college and university film and media studies students;
  • Documentary filmmaking;
  • Obsolete software and video game formats.
  • Noncommercial videos. (A new exemption in 2010, similar to a previous educational exemption.)
• Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. (A new exemption in 2010.)
• Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. (Revised from a similar exemption approved in 2006.)
• Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
  • The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
  • The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law. (A new exemption in 2010.)
• 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. (A renewed exemption from 2006, based on 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. (A renewed exemption from 2006, based on a similar exemption approved in 2003.)

2012 rulemaking

The 2012 exemptions, issued in November 2012,^[37] are for:

• Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies
• Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device
• Computer programs that enable certain types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network
• Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in limited instances
• Motion pictures and other audiovisual works on DVDs that are protected by the Content Scrambling System, or that are distributed by an online service and protected by technological measures that control access to such works, where circumvention is related to developing captioning and descriptive audio technologies

2015 rulemaking

The 2015 exemptions, issued in October 2015,^[38] are for:

• Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in limited instances,
• Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies,
• Computer programs that enable the following types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network,
• Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device,
• Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television,
• Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function,
• Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law,
• Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay,
• Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data, and
• Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system.

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 (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.^[39]

Edelman v. N2H2

In July 2002, American Civil Liberties Union filed a lawsuit on the behalf of Benjamin Edelman, a computer researcher at Berkman Center for Internet and Society, seeking a declaratory judgment to affirm his first amendment rights when reverse engineering the censorware product of defendant N2H2 in case he intended to publish the finding. N2H2 filed a motion to dismiss, which the court granted.

RealNetworks, Inc. v. DVD Copy Control Association, Inc.

In August 2009, the DVD Copy Control Association 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 DVD Copy Control Association 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 Content Scrambling System.^[40]

Viacom Inc. v. 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 relied on the 1998 Digital Millennium Copyright Act's "safe harbor" provision to shield them from liability.^[41]

On June 23, 2010, U.S. District Judge Louis Stanton granted summary judgment in favor of YouTube.^[42] The court held that YouTube is protected by the safe harbor of the DMCA. Viacom appealed to the U.S. Court of Appeals for the Second Circuit.^[43]

On April 5, 2012, the federal Second Circuit Court of Appeals vacated Judge Louis Stanton's ruling, and instead ruled that Viacom had presented enough evidence against YouTube to warrant a trial, and the case should not have been thrown out in summary judgment. The court did uphold the ruling that YouTube could not be held liable based on "general knowledge" that users on its site were infringing copyright. The case was sent back to the District Court in New York,^[44] and on April 18, 2013, Judge Stanton issued another order granting summary judgment in favor of YouTube. The case is over; no money changed hands.

IO Group, Inc. v. 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.^[45]

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.^[46]

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.^[47] Even though Veoh won the court case, it blamed the litigation as one of the causes of its preparing to file Chapter 7 bankruptcy and its subsequent sale to Qlipso.^[48][49]

Vernor v. Autodesk, Inc.

After numerous DMCA takedown notices in response to his eBay listings, Timothy S. Vernor sued Autodesk in August 2007 alleging that Autodesk abused the DMCA and disrupted his right to sell used software he bought at a garage sale.^[50] In May 2008, 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.^[51] In September 2010, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that "a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions."^[52]

Lenz v. Universal Music Corp.

In 2007, Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania made a home video of her 13-month-old son dancing to "Let's Go Crazy" and posted a 29-second video on the video-sharing site YouTube. Four months after the video was originally uploaded, Universal Music Group, which owned the copyrights to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act.

Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks—not two weeks, as required by the Digital Millennium Copyright Act—to see whether Universal planned to sue Lenz for infringement. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song.^[53]

In August 2008, U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material.

On February 25, 2010, Judge Fogel issued a ruling rejecting several of Universal's affirmative defenses, including the defense that Lenz suffered no damages.^[54]

Flava Works Inc. v. Gunter

In the case of Flava Works Inc. v. Gunter the court denied the defendant safe harbour protection under DMCA 17 U.S.C. § 512. The district court found that the defendant had knowledge of its users' infringing activity and also failed to prevent future infringing activity. As such the plaintiff's motion for preliminary injunction was granted.^[55] On appeal, however, the Seventh Circuit vacated the injunction, citing the standard set in eBay Inc. v. MercExchange, L.L.C., which states that courts should not rely on categorical rules as a standard for injunction.^[56]

Ouellette v. Viacom International Inc.

In this case of Ouellette v. Viacom International Inc., the court denied plaintiff's attempt to find liability for YouTube and Myspace's takedowns of the plaintiff's homemade videos. Despite potential fair use claims, the court found it impossible to use the DMCA takedown provisions as a foundation for liability. The court found that the safe harbor provision serves "to limit the liability of internet service providers, not to create liability that could not otherwise be imposed under existing law independent of the DMCA."^[57]

Sony v. George Hotz

In January 2011, Sony Computer Entertainment sued George Hotz over violating the Section 1201 of the Digital Millennium Copyright Act as well as the Federal Fraud and Abuse Act due to facilitating consumers to jailbreak their PlayStation 3 consoles.^[58] Hotz argued that because he had purchased the product, he had the right to do with it as he pleased. After three months, Sony and Hotz decided to settle out of court. This also included an injunction against George Hotz, barring him from hacking any more Sony products.^[59][60]

Automattic, Inc. and Oliver Hotham v. Nick Steiner

In 2013, Oliver Hotham wrote an article on WordPress (owned by Automattic, Inc.) critical of Straight Pride UK that included material from a press release sent to him by Straight Pride UK's press officer, Nick Steiner. Steiner sent WordPress a DMCA takedown notice claiming that Hotham's article infringed their copyright. WordPress and Hotham sued in a federal District Court in California, under §512(f) of the DMCA, claiming that the takedown notice was fraudulent, and that the takedown cost the plaintiffs time, lost work and attorneys' fees. In 2015, the court issued a default judgment in favor of WordPress and Hotham in the amount of $25,084.^[61]

Criticisms

Abuse of takedown notice

Music companies have urged Google to prevent searches of copyright infringing material by sending them a multitude of takedown notices, but despite these efforts, many top search results on Google are still these materials in question. The DMCA also includes the safe harbor provision which protects websites from taking blame when it comes to copyright takedowns. Some websites are profiting from the violation of copyrights but because of this loophole they are not held responsible.^[62]

Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act,^[63] quoting results from a 2005 study by California academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse.^[64] 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."^[65]

Currently there are three main abuses of the DMCA. First, takedown notices supersede the fair use doctrine which goes against the freedom of speech act. Second, if the person sending the takedowns do not own the copyright to the material they are claiming, the legitimate owner’s copyrights are then violated for 10–14 days while the takedown notice is processed. Third, the DMCA has been used to invoke censorship rather than to protect legitimate copyright holder’s rights online.^[66]

Abuse of the anti-circumvention provision

In 2015 Volkswagen abused the DMCA to hide their vehicles emissions cheat.^[67] It has been suggested that had the DMCA not prevented access to the software "..a researcher with legal access to Volkswagen's software could have discovered the code that changed how the cars behave in testing.."^[68]

Effect on analog video equipment

Analog Copy Protection (ACP), the encryption technology created by Rovi Corporation (formerly Macrovision), is designed to thwart users' attempts to reproduce content via analog cables. When a DVD is played through an analog video cable and recorded using a VCR, Rovi's ACP technology will distort the copy partially or completely.^[69]

The technology works by adding additional lines to the video signal. In the NTSC video standard, blank lines (vertical blanking intervals) that the user cannot see are used for functions like closed captioning. Rovi Corporation uses these blank lines to implement its ACP technology.^[70]

The implementation of ACP has been ill-regarded by some video enthusiasts. Many claim that the technology has led to signal issues with VCRs and analog video equipment. Some VCRs misread the encryption used to prevent copying, distorting the video image regardless of whether the recording is original or a copy.

The DMCA has been criticized for forcing all producers of analog video equipment to support the proprietary copy protection technology of Rovi Corporation, a commercial firm. The producers of video equipment are forced by law to support and implement the corporation's proprietary technology. This benefits Rovi Corporation financially, whereas those forced to implement it receive neither profit nor compensation.^[71]

Additionally, some criticize the implementation of ACP as a violation of their fair use rights. A recently developed TV-streaming product called the Slingbox uses analog signals to convey video from television to a mobile device. However, the encryption used by ACP blocks analog transmission, rendering the Slingbox unusable. Additionally ACP blocks the use of recording for educational purposes. On one or more accounts, students have not been able to cite and record cable sources properly due to ACP restrictions.^[72]

Effect on research

The DMCA has affected 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.^[73] 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.^[74] 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.^[75] 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),^[76] 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 U.S.^[77]

Effect on innovation and competition

In at least one court case, the DMCA has been used by open source software projects to defend against conversion of software (i.e., license violations) that involved removal of copyright notices.^[78] This defense can be used even without timely copyright registration, and can generate attorney fee awards, which together make it a useful strategy for open source organizations.

Reform and opposition

There have been several Congressional efforts to modify the Act. The Unlocking Technology Act of 2013 was introduced to attempt to exempt non-infringing uses from the anti-circumvention clause.^[79] However, the bill was not passed by Congress. In 2014, the Unlocking Consumer Choice and Wireless Competition Act was passed, granting a specific exemption for unlocking cell phones, without affecting the other provisions of the DMCA.

Bills in 2015 included the Unlocking Technology Act of 2015,^[80] and the Breaking Down Barriers to Innovation Act of 2015.^[81] Republicans are considering legislation as well, as it becomes clear that Section 1201 is impeding the country's security. Facing escalating numbers of cyberthreats, cybersecurity researchers petitioned to conduct research to keep pace with evolving cybersecurity risks and vulnerabilities, stating: "Without such an exemption, security risks will lie unaddressed and the public will be substantially less safe."^[82] The bills are intended to address the fact that section 1201 prevents circumvention even when doing so is not copyright infringement. In addition, the section requires exemption proponents to bear the burden of proof every time their exemption comes up for triennial review, instead of there being a presumption of renewal for an exemption whose importance was previously proven.

Rick Boucher, a congressman from Virginia, led previous 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 fifth anniversary of the DMCA, and several times afterwards, the Electronic Frontier Foundation documented harmful consequences of the anti-circumvention provisions.^[83] 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;^[84] and
4. Interferes with computer intrusion laws.^[85]

In July 2016, the Electronic Frontier Foundation sued the US government alleging that Section 1201 violates the First Amendment.^[86]

The Electronic Frontier Foundation strongly dislikes the effects of the Sonny Bono Copyright Term Extension Act, specifically the extension of time for the protection of creations.^[87] They cite Rufus Pollock's study on optimal copyright term length. He found that copyright works best only when the amount of time protected is fourteen years.^[88] The EFF also makes the argument that all the side effects of the Sonny Bono Copyright Term Extension Act are negative for all parties except media companies. Therefore, it only helps the big media companies.^[87]

See also

Proposed international law

• Anti-Counterfeiting Trade Agreement

DMCA anti-circumvention cases

DMCA damages cases

• Stockwire Research Group, Inc., et al. v. Lebed, et al.

DMCA notice-and-takedown issues

• Online Copyright Infringement Liability Limitation Act (OCILLA) (more information about the DMCA 512 takedown provisions)
• Lumen (clearinghouse for DMCA takedowns)
• Lenz v. Universal Music Corp.

Economic concepts

• Protectionism

Related US laws

• Copyright Term Extension Act (1998)
• Digital Performance Right in Sound Recordings Act (1995)
• Inducement rule
• NET Act, the "No Electronic Theft"

Proposed US legislation

• BALANCE Act, Benefit Authors without Limiting Advancement or Net Consumer Expectations Act of 2003
• Inducing Infringement of Copyrights Act (INDUCE) (introduced 2004)
• Pirate Act (introduced 2004)
• Digital Media Consumers' Rights Act (introduced 2003 & 2005)
• Digital Transition Content Security Act (introduced 2005)
• FAIR USE Act (introduced in 2007)

Shelved US Legislation

• PROTECT IP Act (introduced in 2011, shelved indefinitely)
• Stop Online Piracy Act (SOPA) (introduced in 2011, shelved indefinitely)

Related international law

• Bill C-60 (Canada – proposed)
• Bill C-61 (Canada – proposed)
• Bill C-32 (Canada – proposed)
• DADVSI (France – Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information)
• Digital Economy Act 2010 (United Kingdom)
• EU Copyright Directive (European Union)^[89]
• Protection of Broadcasts and Broadcasting Organizations Treaty (proposed)

References

Notes

External links

Works related to Digital Millennium Copyright Act at Wikisource

• H.R. 2281, DMCA
• U.S. Copyright Office summary of the DMCA (PDF format)
• Wikimediafoundation.org
• Title 17 of the U.S. Code, Cornell Law School
• Cybertelecom's DMCA information and background material
• A citizen's guide to the DMCA
• Info on Dealing with Digital Copyrights Infringement including filing DMCA Notices
• Interview of Marcia Hoffman from the EFF on Lenz v. Universal DMCA lawsuit
• Seth Finkelstein, How To Win (DMCA) Exemptions And Influence Policy.
• The Electronic Frontier Foundation (EFF) page on the DMCA
• Unintended Consequences: Ten Years under the DMCA - EFF
• Media Copyrights Law
• In Your Pocket - The DMCA
• A Decade of the DMCA
• A web-based tool for identifying the owners and operators of websites with infringing content