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Digital Millennium Copyright Act

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The Digital Millennium Copyright Act (DMCA) was a controversial law in the United States of America that amended title 17 of the US Code, which deals with copyright. Passed in 1998 by a unanimous vote in the United States Senate, the DMCA strengthened copyright protections substantially. The lobbyists who wrote the DMCA claim that it was needed in order to implement the WIPO Copyright Treaty into US law. It was essentially those same lobbyists who were responsible for the creation of the WIPO Copyright Treaty in the first place. Other legal experts claim that all necessary laws were in place for WIPO compliance before the DMCA was passed.

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Controversial anti-circumvention measures

The DMCA is controversial due primarily to the changes adding chapter 12 (see below under OCILLA for the chapter 5 changes). Specifically, section 1201: paragraph (a) of section 1201 is the declaration that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title." See: software cracking and software piracy. Also prohibited are manufacturing or distributing technology which is principally designed, or used, for circumventing access. Critics point out that this broad ban applies not only to access controls that enforce the rights of copyright holders, but also to virtually any restrictions content providers may wish to impose. Thus, while the DMCA claims in paragraph (e) not to affect fair use rights, in practice many such rights may be curtailed. Scientists and members of the computer programming community, some of the most vocal opponents of the DMCA, have also objected to its potential to stifle computer research and development.

Limited exemptions from the ban on circumvention are provided for academic institutions and libraries, but the law does not make clear how such institutions are to obtain the technology for legal circumvention as distribution of this technology is prohibited. Supporters of the law, which include software companies, publishers, and the entertainment industry, contend that the provisions of the DMCA are necessary to combat internet piracy.

Threats of DMCA-related litigation may have had more effect upon would-be defendants than the DMCA itself. Components of the DMCA may also violate the First Amendment of the United States Constitution. However, cases involving it have not yet reached the Supreme Court.

There are efforts in Congress to modify the Act. Richard Boucher[?], a Democratic congressman from Virginia, is leading one of these efforts by introducing the 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 passed, would deal with the devices used to access digital content and would be even more restrictive than the DMCA.

DCMA Title II: The Online Copyright Infringement Liability Limitation Act

The Online Copyright Infringement Liability Limitation Act (OCILLA), Title II of the DMCA legislation, creates a right in section 512 of the Copyright Act (17 U.S.C. sec. 512) that provides a safe harbor for a ISPs against copyright liability and additional penalities specific to the DMCA for copyright infringement under the federal law. The courts have generally upheld these provisions when they involve "512(c)- Information Residing on Systems or Networks At Direction of Users", such as a hosting service that rents disk space and network access. Courts have also, in some cases, ruled that open content sites (examples being a blog, a forum or even a Wikipedia) cannot be held responsible for the infringements by their members if they take timely advantage of the act's safe harbor provision. However, an open content site that willfully and outrageously flaunts the law by encouraging or condoning infringement and provides no mechanism for policing of copyright issues or dispute resolution as provided in the OCILLA may well be liable — in such a situation the courts may find even an open content site liable for copyright infringement.

The new section 512 provides for the appointment of a designated agent under the act through the U.S. Copyright Office with public notice on the ISP web site. Should an ISP maintain such a designated agent, a aggrieved copyright holder can make a written complaint to the ISP to remove or block access to any offending site found on an ISP's server. A complaint, to be compliant and therefore require recognition and action by the ISP, must provide specific details as described in the language of that law, that cleary identify the material and the complaint must also include an affadavit by the complainant, under oath, with criminal perjury penalities, as to the truth of claims in the complaint. The language of the DMCA 512(c)(1) specifies that upon getting a conforming complaint an ISP aquires safe harbor status (protection against civil and criminal penalites) only when the ISP, as stated in DMCA 512(c)(1)(C)," . . . upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing."

If the ISP does not expeditously remove the material it will become vulnerable to legal action for money damages and/or possible criminal action and/or [injunctive relief]].

The keyword in the safe-harbor exception language is "expeditously," a term that does not allow delay or alternatives. The law does not allow delay while the ISP contacts the site owner nor does it give authority for any other delay in blocking or removal. Given the ease with which DNS (Domain Name Server) blocking may be accomplished by a simple stroke, the definition of expeditiously is more likely in hours, not days.

An ISP's liability to the client whose web site has been affected by blocking or removal of alleged ingringing material is limited by 512(g)(1) but the law does require prompt notice from the ISP to the alleged infringing client that the action has taken place and give that party ten days to file a counterclaim denying the infringment. If the alleged infringer does not file a counterclaim under the procedure provided by the act, the ISP must permanently remove the infringing material. If the alleged infringer does file a timely and conforming counterclaim, the original complaiant must then launch a legal action for copyright infringment against the alleged infringer or, that action lacking, the ISP may restore access to the material.

Test Cases

  • The MPAA started a DMCA lawsuit on January 17, 2000 against distributors of DeCSS.
  • Edward Felten[?] clashed with the RIAA over the right to publish research on SDMI[?].
  • On July 16, 2001, Dmitry Sklyarov, a Russian citizen, was arrested for allegedly violating this provision of the law. Protests ensued, which were coordinated from the website www.freesklyarov.org. Possibly as a result of these protests, the US government has agreed to drop all charges filed against Dimitry, provided that he testify at the trial of his company, Elcomsoft. In November 2002, ElcomSoft was found not guilty of all four charges under the DMCA.
  • In February 2002, lawyers working for Blizzard Entertainment threatened legal action under the DMCA against the developers of bnetd, a freely available clone of battle.net, a proprietary server system used by all Blizzard games on the Internet. Blizzard claims that these servers allow circumvention of its CD key copy protection scheme. As a potentially important test case, lawyers from the Electronic Frontier Foundation became involved, and as of June 2002, negotiations were still underway to settle the case without a trial. See Blizzard Entertainment.
  • A lawsuit filed on December 30, 2002 by the Lexmark[?] printer company against Static Control Components[?] for creating a chip designed to allow the manufacture of compatible printer cartridges; Lexmark won a preliminary injunction.
  • A lawsuit by the Chamberlain Group[?], a manufacturer of automatic garage door openers, against Skylink[?] for its compatible remote control device.
  • The Recording Industry Association of America sued Verizon Communications to obtain the name of a Kazaa subscriber who allegedly shared hundreds of music recordings. A District Judge ordered Verizon to disclose the information in January 2003. Verizon is to appeal.

Public appeal for comments

In 2002 the U.S. Copyright Office launched a public appeal for comments on the DMCA in order "to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls". The first set of comments is posted here (http://www.copyright.gov/1201/2003/comments/index). Further comments can be submitted, as described here (http://www.copyright.gov/1201/index).

External links

Other References

  1. Jessica Litman (2001), Digital Copyright, Prometheus Books.

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