| Fullname: | 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. |
| Acronym: | DMCA |
| Enacted By: | 105th |
| Effective Date: | October 28, 1998 |
| Cite Public Law: | Pub. L. 105-304 |
| Public Law Url: | http://thomas.loc.gov/cgi-bin/toGPO/http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ304.105.pdf |
| Cite Statutes At Large: | 112 Stat. 2860 (1998) |
| Acts Amended: | Copyright Act of 1976 |
| Title Amended: | 5 (Government Organization and Employees); 17 (Copyrights); 28 (Judiciary and Judicial Procedure); 35 (Patents) |
| Sections Created: | 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001 |
| Sections Amended: | 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701 |
| Leghisturl: | http://thomas.loc.gov/cgi-bin/bdquery/z?d105:HR02281:@@@X |
| Introducedin: | House of Representatives |
| Introducedbill: | H.R. 2281 |
| Introducedby: | Rep. Howard Coble (R-NC) |
| Introduceddate: | July 29, 1997 |
| Committees: | House Judiciary Committee (Subcommittee on Courts and Intellectual Property); House Commerce Committee (Subcommittee on Telecommunications, Trade, and Consumer Protection) |
| Passedbody1: | House |
| Passeddate1: | August 4, 1998 |
| Passedvote1: | voice vote |
| Passedbody2: | Senate |
| Passeddate2: | September 17, 1998 |
| Passedvote2: | unanimous consent |
| Conferencedate: | October 8, 1998 |
| Passedbody3: | Senate |
| Passeddate3: | October 8, 1998 |
| Passedvote3: | unanimous consent |
| Passedbody4: | House |
| Passeddate4: | October 12, 1998 |
| Passedvote4: | voice vote |
| Signedpresident: | Clinton |
| Signeddate: | October 28, 1998 |
| Amendments: | None |
The Digital Millennium Copyright Act (DMCA) is a United States copyright law which implements two 1996 WIPO treaties. It criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (commonly known as DRM) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also 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 U.S. Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users.
On May 22, 2001, the European Union passed the EU Copyright Directive or EUCD, which addresses some of the same issues as the DMCA. But the DMCA's principal innovation in the field of copyright, the exemption from direct and indirect liabilty of internet service providers and other intermediaries (Title II of the DMCA), was separately addressed, and largely followed, in Europe by means of the separate Electronic Commerce Directive.
DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act has two major portions. One portion includes works covered by several treaties in US 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 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 commonly known as Macrovision built in, effectively giving Macrovision a monopoly on the analog video recording copy prevention market. However, section 1201(c) of the title clarified that the title does not change the underlying substantive copyright infringement rights, remedies, or defenses. The title contains other limitations and exemptions, including for research and reverse engineering in specified situations.
DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA") creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if the material upon notice from such users claiming that the material in question is not, in fact, infringing. OCILLA also provides for subpoenas to OSPs to provide their users' identity.
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.
DMCA Title IV contains an assortment of provisions:
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 they are useful articles whose form cannot be cleanly separated from their function.[1][2]
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 noninfringing 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 and 2003, are no longer valid.
The current administratively-created exemptions, issued in November 2006, are:
The Copyright Office approved two exemptions in 2000; four in 2003; and six in 2006. In 2000, 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." 2003 also added an ebook exemption for text readers and an obsolete software and video game format exemptions, both of which were renewed in 2006. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006.[3]
There are efforts in Congress to modify the Act. Rick Boucher, a Democratic congressman from Virginia, is leading one of these 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.
Timothy B. Lee, in a paper written for the Cato Institute, wrote:
The DMCA is anti-competitive. It gives copyright holders — and the technology companies that distribute their content — the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates. http://www.cato.org/pub_display.php?pub_id=6025
The DMCA has been criticized for forcing all companies producing analog video equipment to support the proprietary copy protection technology of a particular commercial firm (Macrovision). The producers of video equipment are forced by law to support the Macrovision technology to the financial benefit of Macrovision whereas those who build the video equipment get nothing in compensation.
The DMCA has been criticized for making it too easy for copyright owners to encourage website owners to take down infringing content and links when it may not in fact be infringing. When website owners receive a takedown notice it is in their interest not to challenge it, even if it is not clear if infringement is taking place, because if the potentially infringing content is taken down the website will not be held liable. The Electronic Frontier Foundation senior IP attorney Fred von Lohmann has said this is one of the problems with the DMCA.[4]
Many sites are receiving DMCA notices and taking down links to infringing material as a result. Because the links are taken down it is rarely challenged in court resulting in link liability being a grey area of the law, although based on previous legal cases it leans in favor of copyright owners.[5] Stephan Ott of LinksandLaw.com states that "linking to infringing content is unlawful and that is also what most of the courts say".[6]
See main article: Digital rights management.
The DMCA has had an impact on 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.[7] 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.[8] 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 several months in jail.[9] The DMCA has also been cited as chilling to legitimate users, such as students of cryptanalysis (including, in a well-known instance, Professor Felten and students at Princeton[10]), 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 US.[11]
Related US laws:
Proposed US legislation:
Related non-US law:
DMCA anti-circumvention cases:
DMCA notice-and-takedown issues: