For a multitude of reasons, in 1998 the Senate unanimously amended the United States copyright code with the passage of the Digital Millennium Copyright Act (DMCA). While 1998 seems like almost ancient history now in 2013, the changes the DMCA enacted still touch almost every aspect of entertainment today. Both creators and consumers alike should be aware of its provisions.
One of the primary drivers behind the DMCA was the desire to comply with two treaties of the World Intellectual Property Organization (WIPO). These two treaties are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which were both implemented in 1996. The DMCA modified US copyright law to include works produced in countries with signed these treaties. Secondly, the DMCA implemented the anti-circumvention provisions set forth in the treaties. These provisions restrict the ability to make, sell, or distribute devices which circumvent Digital Rights Management (DRM) systems. There are exceptions for fair use, reverse engineering, and law enforcement.
Another important implementation in the DMCA was the creation of safe harbors for online service providers. A provider is eligible for the safe harbor if it blocks access to alleged infringing material in response to an infringement notification for a copyright holder. Its users can counterclaim that the alleged infringing material is in fact not infringing. Even with the safe harbor, a provider can receive a subpoena to produce the user’s identity which made the offending material available.
There were other, more minor, provisions enacted in the DMCA. Title III of the bill reversed a Ninth Circuit precedent by allowing temporary copies of copyrighted materials to made while repairing computers. Title IV added to provisions to facilitate distance education, help libraries keep phonorecords of sound recordings, and amending the process of transferring movie rights. Finally, Title V allows for boat hull designs to be protected by copyright.
The most sweeping change of the DMCA are the anti-circumvention provisions. Some people have complained the takedown notice mechanism is being abused. Others feel more needs to be done to prevent the illegal distribution of copyrighted material online. On the provider side, many providers have fought orders to reveal their users’ identities. Copyright owners have also tried to pierce the safe harbor to hold providers liable for infringement, but generally they have been unsuccessful.
If you or your copyrighted work are involved with online infringement, you can contact Stone Law at 732-444-6303 or leave us a message on our website.