Monday, June 27, 2011

Copyright Enters the Digital Age: The Digital Millenium Copyright Act

In 1998, Congress passed the Digital Millenium Copyright Act, known as the "DMCA".  The Act had several portions that served to update a great deal of the law as it applies to computer-related copyright matters.  One part amends U.S. copyright law to comply with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty.  These two treaties were adopted in 1996, and include provisions known as the DMCA anti-circumvention provisions, which changed the remedies for the circumvention of copy-prevention systems and required that video recorders have built-in copy prevention devices. 

A second part of the DMCA relates specifically to limiting the liability of certain entities for online copyright infringement.  This portion, known as the Online Copyright Infringement Liability Limitation Act, creates what is known as a "safe harbor" for online internet service providers.  This shields the service providers 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. 

A third part of the DMCA modifies the copyright act to permit those repairing computers to make certain temporary, limited copies while working on a computer, without violating any copyright. 

There has been over a decade of criticism of the DMCA and how it effects copyright holders and others.  Some have said that the DMCA makes it too easy for copyright owners to ask a website to take down copied material, even if there is no likely infringement liability.  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.  Some have criticized the DMCA's copy prevention portion as preventing the fair use of copyrighted materials, such as copying for educational uses.  And researchers in cryptography and data protection complain that the DMCA hinders their work.  There is some movement in the legislature to amend the law in response to these criticisms. 

Let us know if you have any questions on the DMCA.  Send us your questions or comments, or post them on the blog.  The email is  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

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