Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).
Copyright Office Summary
December 1998
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THE DIGITAL MILLENNIUM COPYRIGHT
ACT OF 1998
U.S. Copyright Office Summary
December 1998
INTRODUCTION
The Digital Millennium Copyright Act (DMCA)
was signed into law by 1 President Clinton
on October 28, 1998. The legislation implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA also addresses a number of other significant copyright-related issues.
The DMCA is divided into five titles:
Title I, the “WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998,” implements the WIPO treaties.
Title II, the “Online Copyright Infringement Liability Limitation Act ,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
Title III, the “Computer Maintenance Competition Assurance
Act,” creates an exemption for making a copy of a computer program
by activating a computer for purposes of maintenance or repair.
Title IV contains six miscellaneous provisions, relating to the functions
of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.
This memorandum summarizes briefly each title of the DMCA. It provides merely an overview of the law’s provisions; for purposes of length and readability a significant amount of detail has been omitted.
A complete understanding of any provision of the DMCA requires reference to the text of the legislation itself.
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Savings clauses
Section 1201 contains two general savings clauses. First, section 1201(c)(1)
states that nothing in section 1201 affects rights, remedies, limitations or defenses to copyright infringement, including fair use. Second, section 1201(c)(2) states that nothing in section 1201 enlarges or diminishes vicarious or contributory copyright infringement.
Exceptions
Finally, the prohibitions contained in section 1201 are subject to a number of
exceptions. One is an exception to the operation of the entire section, for law
enforcement,intelligence and other governmental activities. (Section 1201(e)). The others relate to section 1201(a), the provision dealing with the category of technological measures that control access to works.
The broadest of these exceptions, section 1201(a)(1)(B)-(E), establishes an
ongoing administrative rule-making proceeding to evaluate the impact of the
prohibition against the act of circumventing such access-control measures. This conduct prohibition does not take effect for two years.
Once it does, it is subject to an exception for users of a work which is in a particular class of works if they are or are likely to be adversely affected by virtue of the prohibit ion in making non infringing uses.
The applicability of the exemption is determined through a periodic rule making by the Librarian of Congress, on the recommendation of the Register of Copyrights, who is to consult with the Assistant Secretary of Commerce for Communications and Information.
The six additional exceptions are as follows:
1. Nonprofit library, archive and educational
institution exception (section1201(d)). The prohibition on the act of circumvention of access control measures is subject to an exception that permits nonprofit libraries, archives and educational institutions to circumvent solely for the purpose of making a good faith determination as to
whether they wish to obtain authorized access to the work.
2. Reverse engineering (section 1201(f)). This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
3. Encryption research (section 1201(g)). An exception for encryption research permits circumvention of access control measures.
The Digital Millennium Copyright Act of 1998
The Fairness in Musical Licensing Act, Title II of Pub. L.
No. 105-298, 112 Stat. 2827,
32830-34 (Oct. 27, 1998) also adds a new section 512 to the Copyright Act. This duplication of section numbers will need to be corrected in a technical amendments bill.
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December 1998
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Copyright Office and NTIA Studies Relating to Technological Development
Title I of the DMCA requires the Copyright Office to conduct two studies
jointly with NTIA, one dealing with encryption and the other with the effect of technological developments on two existing exceptions in the Copyright Act. New section 1201(g)(5) of Title 17 of the U.S. Code requires the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to report to the Congress no later than one year from enactment on the effect that the exemption for encryption research (new section 1201(g)) has had on encryption research, the development of encryption technology, the adequacy and effectiveness of technological measures designed to protect copyrighted works, and the protection of copyright owners against unauthorized access to their encrypted copyrighted works.
Section 104 of the DMCA requires the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to jointly evaluate (1) the effects of Title I of the DMCA and the development of electronic commerce and associated technology on the operation of sections 109 (first sale doctrine) and 117 (exemption allowing owners of copies of computer programs to reproduce and adapt them for use on a computer), and (2) the relationship between existing and emergent technology and the operation of those sections. This study is due 24 months after the
date of enactment of the DMCA.
TITLE II:
ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Title II of the DMCA adds a new section 512 to the Copyright Act
to create 3 of our new limitations on liability for copyright infringement by online service providers. The limitations are based on the following four categories of conduct by a service provider:
1. Transitory communications;
2. System caching;
3. Storage of information on systems or networks at direction of users; and
4. Information location tools.
New section 512 also includes special rules concerning the application of these limitations to nonprofit educational institutions.
The Digital Millennium Copyright Act of 1998
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Each limitation entails a complete bar on monetary damages, and restricts the availability of injunctive relief in various respects. (Section 512(j)). Each limitation relates to a separate and distinct function, and a determination of whether a service provider qualifies for one of the limitations does not bear upon a determination of whether the provider qualifies for any of the other three. (Section 512(n)). The failure of a service provider to qualify for any of the limitations in section 512 does not necessarily make it liable for copyright infringement. The copyright owner must still demonstrate that the provider
has infringed, and the provider may still avail itself of any of the defenses, such as fair use, that are available to copyright
defendants generally. (Section 512(l)).
In addition to limiting the liability of service providers, Title II establishes a procedure by which a copyright owner can obtain a subpoena from a federal court ordering a service provider to disclose the identity of a subscriber who is allegedly engaging in infringing activities. (Section 512(h)).
Section 512 also contains a provision to ensure that service providers are not placed in the position of choosing between limitations on liability on the one hand and preserving the privacy of their subscribers, on the other. Subsection (m) explicitly states that nothing in section 512 requires a service provider to monitor its service or access material in violation of law (such as the Electronic Communications Privacy Act) in order to be eligible for any of the liability limitations.
Eligibility for Limitations Generally a party seeking the benefit of the limitations on liability in Title II must qualify as a “service provider.” For purposes of the first limitation, relating to transitory communications, “service provider” is defined in section 512(k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” For purposes of the other three limitations, “service provider” is more broadly defined in section 512(k)(l)(B) as “a provider of online services or network access, or the operator of facilities therefor.” In addition, to be eligible for any of the limitations, a service provider must meet two overall conditions: (1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with “standard technical measures.”
(Section 512(i)). “Standard technical measures” are defined as measures
that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair and voluntary multi-industry process, are available to anyone on reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.
Limitation for Transitory Communications In general terms, section 512(a) limits the liability of service providers in circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else’s request. This limitation covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and transient copies that are made automatically n the operation of a network. In order to qualify for this limitation, the service provider’s activities must meet the following conditions:
The transmission must be initiated by a person other than the provider.
The transmission, routing, provision of connections, or copying must
be carried out by an automatic technical process without selection of
material by the service provider.
The service provider must not determine the recipients of the material.
Any intermediate copies must not ordinarily be accessible to anyone
other than anticipated recipients, and must not be retained for longer
than reasonably necessary.
The material must be transmitted with no modification to its content.
Limitation for System Caching Section 512(b) limits the liability of service providers for the practice of retaining copies, for a limited time, of material that has been made available online by a person other than the provider, and then transmitted to a subscriber at his or her direction. The service provider retains the material so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source on the network.
The benefit of this practice is that it reduces the service provider’s bandwidth
requirements and reduces the waiting time on subsequent requests for the same information. On the other hand, it can result in the delivery of outdated information to subscribers and can deprive website operators of accurate “hit” information
—
information about the number of requests for particular material on a website — from which advertising revenue is frequently calculated. For this reason, the person making the material available online may establish rules about updating it, and may utilize technological means to track the number of “hits.”
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The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it. It is subject to the following conditions:
The content of the retained material must not be modified.
The provider must comply with rules about “refreshing” material—replacing
retained copies of material with material from the
original location— when specified in accordance with a generally
accepted industry standard data communication protocol.
The provider must not interfere with technology that returns “hit”
information to the person who posted the material, where such
technology meets certain requirements.
The provider must limit users’ access to the material in accordance with
conditions on access (e.g., password protection) imposed by the person
who posted the material.
Any material that was posted without the copyright owner’s authorization
must be removed or blocked promptly once the service provider
has been notified that it has been removed, blocked, or ordered to be
removed or blocked, at the originating site.
Limitation for Information Residing on Systems or Networks at the
Direction of Users Section 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:
The provider must not have the requisite level of knowledge of the
infringing activity, as described below.
If the provider has the right and ability to control
the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
Upon receiving proper notification of claimed infringement, the
provider must expeditiously take down or block access to the material.
In addition, a service provider must have filed with the Copyright Office
a designation of an agent to receive notifications of claimed
infringement. The Office provides a suggested form for the purpose of designating an agent (http://www.loc.gov/copyright/onlinesp/)
and maintains a list of agents on the Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/).
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Under the knowledge standard, a service provider is eligible for the limitation
on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it.
The statute also establishes procedures for proper notification, and rules as to
its effect. (Section 512(c)(3)). Under the notice and take down procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability.
In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).
In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and take down by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either
a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any
resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)). Limitation for Information Location Tools
Section 512(d) relates to hyperlinks, online directories, search engines and the
like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information.