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.|
|Enacted by||the 105th United States Congress|
|Effective||October 28, 1998|
|Public law||Pub. L. 105-304|
|Statutes at Large||112 Stat. 2860 (1998)|
|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, 132, 114, 117, 701|
The Digital Millennium Copyright Act (DMCA) is a 1998 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 that control access to copyrighted works (commonly known as digital rights management or DRM). 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. 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.
- 1 Provisions
- 1.1 Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act
- 1.2 Title II: Online Copyright Infringement Liability Limitation Act
- 1.3 Title III: Computer Maintenance Competition Assurance Act
- 1.4 Title IV: Miscellaneous Provisions
- 1.5 Title V: Vessel Hull Design Protection Act
- 2 Anti-circumvention exemptions
- 3 Linking to infringing content
- 3.1 Edelman v. N2H2
- 3.2 RealNetworks, Inc. v. DVD Copy Control Association, Inc.
- 3.3 Viacom Inc. v. YouTube, Google Inc.
- 3.4 IO Group, Inc. v. Veoh Networks, Inc.
- 3.5 Vernor v. Autodesk, Inc.
- 3.6 Lenz v. Universal Music Corp.
- 3.7 Flava Works Inc. v. Gunter
- 3.8 Ouellette v. Viacom International Inc.
- 3.9 Sony v. George Hotz
- 3.10 Automattic, Inc. and Oliver Hotham v. Nick Steiner
- 4 Criticisms
- 5 See also
- 6 References
- 7 External links
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.
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. 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 separated from their function.
This section's factual accuracy may be compromised due to out-of-date information. (May 2013)
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, only the most recent rulemaking is valid, and prior exemptions issued (in 2000, 2003, 2006, 2010 and 2013) are no longer valid. As of 2017 (for the 2018 rulemaking), the Copyright Office is considering re-authorizing such exemptions if no new evidence is submitted to the contrary.
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.
Several comments were posted by individuals and organizations. An individual recalls that the Copyright Clause has limitations. 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. 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. 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. Rapid7 notice that DMCA adversely affects good faith security research by forbidding researchers from circumventing technological protection measures (TPMs) to analyze software for vulnerabilities. Cyberlaw Clinic at Harvard Law School points out that the rulemaking is a complicated, ad hoc, and unduly burdensome process.
The Learning Disabilities Association of America (LDA) commented that circumventing DRM restrictions to meet accessibility needs deserves a permanent exception. Entertainment Software Association gives a vivid and detailed description of a flourishing market which is only possible because of DMCA. 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.
Comments have also been submitted by, among others, R Street Institute American Association of Law Libraries, Business Software Alliance, Alliance of Automobile Manufacturers, Association of American Universities et al., Copyright Alliance, Association for Computing Machinery U.S. Public Policy Council, the Software and Information Industry Association, DVD Copy Control Association ("DVD CCA") et al., Microsoft Corporation, Association for Competitive Technology, Public Knowledge, American Automobile Association.
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".
The Copyright Office approved two exemptions in 2000, four in 2003, six each in 2006 and 2010, five in 2012 and nine in 2015.
- 2000 rulemaking
In 2000, the first rulemaking, the Office exempted:
- "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and
- "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).
- 2003 rulemaking
In 2003, the Office made the following rules:
- The 2000 filtering exemption was revised and renewed.
- 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.
- A new exemption was implemented for electronic books for which technological protection measures prevented the use of read-aloud software or screen readers. This exemption was renewed in 2006, 2010, 2012, and 2015.
- A new exemption was made for "Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access." This exemption was renewed in 2006 but not in 2010.
- 2006 rulemaking
In 2006, the Office made the following rules:
- The 2003 exemption on obsolete computer programs and video games was renewed.
- The 2003 exemption on computer programs protected by dongles was renewed.
- The 2003 exemption on electronic books was renewed.
- A new exemption was made for sound recordings allowed after security flaws were found in a copy protection system on some Sony CDs; this was not renewed in 2010.
- A new exemption was implemented covering the audiovisual works included in the educational library of a college or university's film or media studies department; this was not renewed in 2010.
- A new exemption was implemented allowing circumvention to allow wireless telephone handsets to connect to wireless networks. This exemption 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.
- 2010 rulemaking
Rulemaking was scheduled to occur in 2009, but the final rule was not issued until the following year. 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, 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, 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, tablets and portable all-purpose mobile computing devices, and 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 smartphone or device, or to permit removal of software from the smartphone or device,
- 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.
This section needs expansion. You can help by adding to it. (November 2008)
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.
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.
On June 23, 2010, U.S. District Judge Louis Stanton granted summary judgment in favor of YouTube. 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.
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, 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.
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. 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.
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. When content is removed from a website, on the request of the owner of that content when he feels that his content has been stolen. This is a well established, accepted, standard of which all website owners and internet service providers follow.  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. 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."
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 the Prince song "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.
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.
In 2015, the court ultimately upheld the finding that Universal was liable under 17 USC 512(f) (the DMCA's bad faith notice and takedown provision) for failing to consider fair use before sending its initial takedown notice.
Flava Works Inc. v. Gunter
In the case of Flava Works Inc. v. Gunter the court denied the defendant safe harbor protection under DMCA  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.. 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.
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."
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. 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.
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.
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.
Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act, quoting results from a 2005 study by California 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."
Currently, there are three main abuses of the DMCA. First, fair use has been a legal gray area, and subject to opposing interpretations. This has caused inequity in the treatment of individual cases. Second, the DMCA has often been invoked overbearingly, favoring larger copyright holders over smaller ones. This has caused accidental takedowns of legitimate content, such as a record company accidentally removing a music video from their own artist. Third, the lack of consequences for perjury in claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement. This has been used by businesses to censor competition.
Abuse of the anti-circumvention provision
In 2015 Volkswagen abused the DMCA to hide their vehicles emissions cheat. 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.."
Effect on analog video equipment
Analog Copy Protection (ACP), the encryption technology created by Rovi Corporation (formerly Macrovision, now TiVo), 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.
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.
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.
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.
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. 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 U.S.
Effect on innovation and competition
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. 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, and the Breaking Down Barriers to Innovation Act of 2015. 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." 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.
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.[vague]
On the fifth anniversary of the DMCA, and several times afterwards, the Electronic Frontier Foundation documented harmful consequences of the anti-circumvention provisions. They document that the DMCA:
- Stifles free expression, such as in its use against Russian programmer Dmitry Sklyarov, Princeton Professor Edward Felten, and journalists;
- Jeopardizes fair use;
- Impedes competition, such as blocking aftermarket competition in toner cartridges, garage door openers, and enforcing walled gardens around the iPod; and
- Interferes with computer intrusion laws.
The effects of DMCA are compounted by the extension of copyright coverage. 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. 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. 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.
- Proposed international law
- DMCA anti-circumvention cases
- 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
- 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, stopped by protests)
- Stop Online Piracy Act (SOPA) (introduced in 2011, stopped by protests)
- Related international law
- 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)
- Protection of Broadcasts and Broadcasting Organizations Treaty (proposed)
- DMCA p7.
- United States Code (2010) Title 17 CHAPTER 5, COPYRIGHT INFRINGEMENT AND REMEDIES, Sec. 506 – Criminal offenses
- Band, Jonathan; Katoh, Masanobu (2011). Interfaces on Trial 2.0. MIT Press. p. 92. ISBN 978-0-262-01500-4.
- Cullins, Ashley Music Industry A-Listers Call on Congress to Reform Copyright Act Hollywood Reporter. April 5, 2016
- 17 U.S.C. 101 (defining "Pictorial, graphic and sculptural works" as "Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.")
- "Vessel Hull Design Protection Act of 1997 (H.R. 2696)", Statement of MaryBeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, Oct. 23, 1997 ("It is a long-held view of the Office that a gap exists in legal protection for the designs of useful articles. Existing bodies of federal intellectual property law do not provide appropriate and practical coverage for such designs, while state law is largely preempted in this area. Consequently, while considerable investment and creativity may go into the creation of innovative designs, they often can be copied with impunity.").
- "Section 1201 Study". U.S. Copyright Office. 2015.
- "Docket Browser: Request for Public Comments: Digital Millennium Copyright Act, Access to Copyrighted Works".
- David Oster (March 4, 2016). "Initial Comments - David Oster".
- Allan R. Adler; Benjamin S. Sheffner (April 1, 2016). "Reply Comments of: Association of American Publishers, Motion Picture Association of America, Recording Industry Association of America".
- Dennis E. Meissner; Nancy Beaumont (February 18, 2016). "Comments Of The Society Of American Archivists".
- Kyle Wiens (March 3, 2016). "Comments of iFixit".
- Harley Geiger (March 3, 2016). "Rapid7, Bugcrowd, & HackerOne Joint Comments to US Copyright Office Section 1201 Study".
- Andrew F. Sellars (March 3, 2016). "Comment of the Cyberlaw Clinic at Harvard Law School".
- Steve Noble (February 25, 2016). "Initial Comments - Learning Disabilities Association of America".
- Stanley Pierre-Louis; Ben Golant; Steven K. Englund (March 3, 2016). "Initial Comments - Entertainment Software Association".
- Stanley Pierre-Louis; Ben Golant; Steven K. Englund (April 1, 2016). "Reply Comments - Entertainment Software Association".
- Catherine R. Gellis (February 16, 2015). "Initial Comments - R Street Institute".
- Emily Feltren (February 26, 2016). "Initial Comments - American Association of Law Libraries".
- Christian Troncoso (March 3, 2016). "Initial Comments - BSA The Software Alliance".
- Jessica L. Simmons; Steven J. Metalitz (March 2, 2016). "Reply Comments - Alliance of Automobile Manufacturers".
- Jessica L. Simmons; Steven J. Metalitz (March 30, 2016). "Reply Comments - Alliance of Automobile Manufacturers".
- Jonathan Band; Jessica Sebeok (March 6, 2016). "Comments Of The Association Of American Universities, The American Council On Education, The Association Of Public And Land-Grant Universities, And Educause On Section 1201 Of The Digital Millennium Copyright Act".
- Terry Hart (March 3, 2016). "Initial Comments - Copyright Alliance 1201 Study Comments final".
- Keith Kupferschmid (April 1, 2016). "Reply Comments - Copyright Alliance 1201 Study".
- Eugene H. Spafford; Paul Hyland (March 3, 2016). "Initial Comments - ACM US Public Policy Council".
- Christopher A. Mohr (March 3, 2016). "Initial Comments of the Software and Information Industry Association".
- Christopher A. Mohr (April 1, 2016). "Reply Comments of the Software and Information Industry Association".
- Bruce H. Turnbull; David Jonathan Taylor (March 3, 2016). "Joint Comments Of The Dvd Copy Control Association And The Advanced Access Content System Licensing Administrator, Llc".
- Dave Green (March 3, 2016). "Initial Comments - Microsoft Corporation".
- Morgan Reed (March 3, 2016). "ACT Comments re USCO Sec 1201 Study v4".
- Raza Panjwani; Charles Duan; Kerry Sheehan (March 4, 2016). "Section 1201 Comments for Copyright Office".
- Kerry Maeve Sheehan; Raza Panjwani; John Bergmayer; Charles Duan (April 2, 2016). "Reply Comments of Public Knowledge".
- Jill Ingrassia (April 1, 2016). "Reply Comments of AAA (American Automobile Association)".
- Section 1201 of Title 17: A report of the Register of Copyrights - United States Copyright Office, June 2017
- "Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works". United States Copyright Office. October 27, 2000.
- "Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works". United States Copyright Office. October 28, 2003.
- "Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works". United States Copyright Office. November 27, 2006.
- "Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works". United States Copyright Office. July 26, 2010.
- "Federal Register | Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" (PDF). www.federalregister.gov. Retrieved 2016-04-04. This article incorporates text from this source, which is in the public domain.
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- "Viacom sues Google over YouTube clips". News.cnet.com. 2007-03-13. Retrieved 2011-11-12.
- Viacom Int'l Inc., et al., v. YouTube, Inc., et al., Nos. 07-Civ-2103 (LLS), 07-Civ-3582 (LLS) Opinion and Order (S.D.N.Y. June 24, 2010).
- Sandoval, Greg (June 23, 2010). "Google defeats Viacom in landmark copyright case". cnet news. U.S. Retrieved June 23, 2010.
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- Delaney, Kevin J. (June 29, 2006). "Veoh Faces Copyright Suit, A Test of Web Video". The Wall Street Journal.
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- "Content sharing company Qlipso buys Veoh" (Apr 9, 2010) Athena Information Solutions Pvt. Ltd.
- "UMG v. Veoh: victory has never been so pyrrhic" (Dec 22, 2011) Engadget, Newstex
- Cheng, Jacqui (2007-09-13). "Autodesk sued for $10 million after invoking DMCA to stop eBay resales". Arstechnica.com. Retrieved 2011-11-12.
- What is DMCA Takedown?, www.howtolearnblog.com, retrieved 2019-05-29.
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- Egelko, Bob (August 20, 2008). "Woman can sue over YouTube clip de-posting". San Francisco Chronicle. Retrieved 2008-08-25.
- Lenz v. Universal Music Corp.
- Grady, John F. (27 July 2011). "Memorandum opinion" (PDF). Court rule in favour of plaintiff's motion for preliminary injunction. Retrieved 21 November 2011.
- Samuels, Julie P.; Higgins, Parker (6 August 2012). "myVidster: A Victory for Innovation and a Vote for Sensible Copyright Law". Electronic Frontier Foundation. Retrieved 8 August 2012.
- Ouellette v. Viacom, Dist. Court, D. Montana (2011)
- Sony follows up, officially sues Geohot and fail0verflow over PS3 jailbreak. Nilay Patel, Engadget (2011-01-12). Retrieved on 2011-02-16.
- "Sony/Hotz settlement details surface".
- "Sony and PlayStation 3 jailbreaker George Hotz settle out of court".
- Van der Sar, Ernesto. "WordPress Wins $25,000 From DMCA Takedown Abuser", TorrentFreak.com, March 5, 2015
- Van der Sar, Ernesto (April 1, 2016). "Music Industry: DMCA Copyright Law is Obsolete and Harmful". TorrentFreak.
- Carolyn Dalton; Antoine Aubert (6 March 2009). "Google submission on TCF Draft ISP Copyright Code of Practice". Archived from the original (PDF) on 20 March 2009. Retrieved 2009-10-14.
- Keall, Chris (16 March 2009). "Google piles into S92". National Business Review. Retrieved 26 September 2017.
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- Cobia, Jeffrey (2008). "The Digital Millennium Copyright Act Takedown Notice Procedure: Misuses, Abuses, and Shortcomings of the Process". Minnesota Journal of Law Science & Technology. 1: 391–393 – via Hein Online.
- Researchers Could Have Uncovered Volkswagen's Emissions Cheat If Not Hindered by the DMCA | Electronic Frontier Foundation
- "Vertical blanking interval".
- "Analog Off". Publicknowledge.org. Archived from the original on 2010-06-27. Retrieved 2010-07-12.
- "Another DMCA Misuse: Macrovision v. Sima". Electronic Frontier Foundation.
- "Analog Hole". Electronic Frontier Foundation. Retrieved 2013-01-13.
- "First Indictment Under Digital Millennium Copyright Act Returned Against Russian National". Cybercrime.gov. Archived from the original on October 17, 2011. Retrieved 2011-11-12.
- "Adobe FAQ: ElcomSoft legal background". Adobe.com. Retrieved 2011-11-12.
- Farhad Manjoo (2001-08-07). "Sklyarov: A Huge Sigh of Release". Wired.com. Archived from the original on 2014-03-24. Retrieved 2014-03-24.
- RIAA challenges SDMI attack 2002-01-07, Retrieved on 2007-02-26
- Ann Harrison (2001-08-13). "Video crypto standard cracked?". Securityfocus.com. Retrieved 2011-11-12.
- "Jacobsen v Katzer: Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgement and Denying Defendants Motion for Partial Summary Judgement" (PDF). Retrieved 2010-05-29.
- Couts, Andrew (9 May 2013). "Awesome new bill legalizes cell phone unlocking, 'fixes' the DMCA". Digital Trends Newsletter. Designtechnica Corporation. Archived from the original on 3 July 2013.
- "Unintended Consequences: Twelve Years under the DMCA | Electronic Frontier Foundation". Eff.org. 2010-03-03. Retrieved 2013-06-14.
- OdioWorks v. Apple Eff.org
- "Unintended Consequences: Twelve Years under the DMCA". Electronic Frontier Foundation. March 2010.
- EFF sues US government to void 'onerous' copyright rules
- Lunney, Glynn S. (2001). "The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act". Virginia Law Review. 87 (5): 813–920. doi:10.2307/1073857. JSTOR 1073857.
- Pollock, Rufus (June 15, 2009). "Forever Minus a Day? Calculating Optimal Copyright Term" (PDF).
- Iván Vargas Chaves. Evolución de la Responsabilidad Civil en Internet: Del Common Law al Derecho Comunitario Europeo. In: Reflexiones sobre Derecho Privado Patrimonial - Vol. II, University of Salamanca, Spain 2012. ISBN 978-84-940144-1-3 (Book Chapter), p. 565.
Works related to Digital Millennium Copyright Act at Wikisource
- H.R. 2281, DMCA
- U.S. Copyright Office summary of the DMCA (PDF format)
- 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