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History and Overview of the DMCA

Copyrights offer protection to authors and artists who create original works. Copyright protection includes literary works, music, films, computer programs, and artwork. When the creator copyrights their work, it gives the creator certain exclusive rights. These rights allow the artist to preserve the originality of the work. They enjoy the benefits of the work's success without the fear of having someone else copy the work.

The copyright owner also has the right to allow others to perform the exclusive rights. The owner can transfer their rights to others. The U.S. Copyright Office is a department within the United States Government. The Copyright Office handles:

  • Registering copyrights
  • Determining what qualifies for copyright protection
  • Implementing copyright laws
  • Providing resources for copyright issues

As technology changes, laws must change as well. For example, the internet has made sharing copyrighted works much easier. This diminishes the protections provided by copyrights.

The Digital Millennium Copyright Act (DMCA) is an amendment to the copyright laws of the United States. The DMCA was enacted in response to the lack of laws that addressed the nature of technology and how it affects the older U.S. copyright laws. The DMCA is in Title 17 of the United States Code (U.S.C). The Digital Millennium Copyright Act focuses on protecting the register of copyrights. The Senate and House of Representatives played a vital role in developing and enacting the DMCA. Former President Bill Clinton signed DMCA into law in 1998.

This article serves to give you an overview of the DMCA. You can visit the Copyrights section on FindLaw for more information.

Reasons for Enactment

Copyright issues arising in the digital age were the reason DMCA became law. The growing opinion of people before the drafting of the DMCA was that new technologies like the internet allowed users to transfer texts, music, movies, and other works of art to other people. Downloading works became much more accessible.

Copyright holders felt many of the current laws needed to provide more protection for their works. Foreign governments were also demanding more protection for copyright holders in their countries. For instance, the United States demanded China enforce international copyright laws. They asked China to find and prosecute software pirates and other violators of U.S. copyrights.

As a result, the U.S. signed two treaties with the World Intellectual Property Organization (WIPO). WIPO is an agency of the United Nations. Those two treaties were the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Both offered more protections for international copyright holders. These treaties addressed technology problems related to keeping copyrights safe.

In December 1996 the United States entered into the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. They were then ratified by Congress. These treaties extended worldwide to protect copyright holders in their respective countries. The WCT protected databases and computer programs. The WPPT protected performers and producers of sound recordings. The WCT and WPPT motivated the United States to pass laws to recognize copyrights from other countries.

What Does the DMCA Do?

The DCMA does the following:

1. Imposes Criminal Consequences

The DMCA makes it a criminal act to produce and distribute devices, services, or technology that dodges measures that control access to copyrighted works. The DMCA addresses copyright issues related to telecommunications.

Telecommunication refers to transmitting:

  • Video
  • Audio
  • Data over long distances using digital and electronic means (sometimes called "telecommunications")

More forms the DMCA protects include:

  • Motion pictures
  • Phonorecords
  • Analogs
  • Copying and distributing copyrighted work stored on hard drives

The law also considers bypassing access controls as a crime. For DCMA, it does not matter that actual copyright infringement occurs. Furthermore, it imposes stricter consequences for any copyright infringement that takes place online.

2. Encourages Individuals and Businesses To Follow Copyright Laws

The DMCA encourages attribution by including provisions related to the copyright notice requirements. Attribution is crediting the original work to the copyright holder.

Digital rights management (DRM) systems aim to prevent unauthorized distribution. DRM also aims to prevent the copying of copyrighted works. DRM are technological measures implemented by rights holders to control access to and usage of digital content. If there are vulnerabilities in technological measures, amendments to the law or DRM system update them. Examples of a DRM system are:

  • Virtual private networks (VPN)
  • Proxy servers
  • User authentications

Trying to go around a streaming service unavailable in your country with an outside VPN may be a violation of the DMCA.

The DMCA also addresses the role of online service providers in copyright infringement. The law does not hold internet service providers liable for copyright infringement through their services. However, the providers must adhere to specific guidelines.

One action required of online service providers (OSPs) is to remove infringing material when they receive a takedown notice of an infringement claim from a copyright owner. A DMCA takedown notice is a written notification sent by a copyright owner to request removal of the infringing material. The copyright owner may have a copyright claim against the infringer if the material is not removed. Users may submit a counter-notice if they believe the content was wrongfully taken down due to a copyright claim. A counter-notice challenges the claim. It also requests restoration of the removed content.

The DMCA's anti-circumvention provisions make it illegal to bypass technological protection measures copyright holders use to control access to their works. The Copyright Office conducts rulemaking proceedings to establish the DMCA's anti-circumvention provisions. Rulemaking proceedings allow for public comments. They provide a space for stakeholders to express their views on aspects of DMCA law. The Librarian of Congress handles overseeing these DMCA rulemaking proceedings.

Please remember that the DMCA only addresses copyrights. DMCA does not address other forms of intellectual property, such as patents or trademarks.

DMCA Exemptions

The DMCA has exemptions. These exemptions allow certain activities that would otherwise be copyright infringement.

These exemptions are:

  • Fair use
  • Noninfringement uses of copyrighted material

Legal protections for specific purposes – the DMCA has safe harbor provisions that offer limited infringement liability protection to websites or internet service providers for copyright infringement committed by their users

Fair use is a legal doctrine. The DMCA does not alter the fair use rights of individuals. Fair use permits limited use of copyrighted materials without getting permission from the copyright owner. Fair use doctrine is applied for:

  • Criticism
  • News reporting
  • Commentary
  • Teaching
  • Research
  • Scholarship

DMCA and The Electronic Frontier Foundation

The Electronic Frontier Foundation (EFF) is a non-profit organization that protects:

  • Privacy
  • Civil liberties
  • Free speech rights in the digital world

The EFF has a significant role in DMCA. The EFF is an active participant in the DMCA rulemaking proceedings. The EFF also provides advocacy for individuals facing legal challenges related to the DMCA.

Getting Legal Help

Copyright laws, including the DMCA, are difficult to understand for many non-attorneys. If you're not sure how to approach a copyright issue, contact an experienced intellectual property attorney for guidance. You can find an attorney's contact information in an attorney directory on Find Law or your state's bar association member directory.

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