What is the DMCA?

The Digital Millennium Copyright Act of 1998 (DMCA) is a landmark piece of federal legislation that attempts to address technological advances. It changes copyright law, giving more protection to digital works. The DMCA has been controversial, with some groups claiming that it upsets the balance of power between creators, consumers, and publishers by favoring content owners.

Key Elements of the DMCA

The key elements of the DMCA involve two concepts, (1) limitations to the liability of online service providers and (2) prohibitions against circumventing copyright protection & management systems.  More specifically, the DMCA:

• Provides some protection to online service providers from liability for online infringement if certain conditions are true and particular rules are followed.
• Allows libraries and archives to make up to three reproductions for replacement or preservation purposes under certain conditions.
• Gives copyright holders the right to control or deny access to digital works protected by copyright.
• Makes the circumvention of technology used to protect copyrighted materials a civil and criminal offense.
• Prohibits the manufacture, provision, and importation of, and trafficking in, anti-circumvention and anti-copying devices or software.
• Prohibits tampering with copyright management information.
• Maintains that rights, remedies, limitations, or defenses to copyright infringement, including fair use, are not affected regardless of new prohibitions on anti-circumvention technologies.
• Establishes that an ongoing, administrative rule making proceeding be held to evaluate the impact of anti-circumvention provisions on non-infringing uses of copyrighted works.
• Directs the U.S. Copyright Office and the National Telecommunications and Information Administration of the Department of Commerce (NTIA) to produce a joint report on first sale and computer software exemptions and how encryption research may be affected by the DMCA [see the report athttp://www.copyright.gov/reports/studies/dmca/dmca_study.html].
• Directs the U.S. Copyright Office to hold public hearings and make recommendations regarding distance education.  This resulted in the  TEACH Actof 2002.

Online Service Provider Liability

The DMCA protects an Online Service Provider (OSP) from liability under certain conditions.   One such condition is that OSPs such as Mercyhurst University must identify an agent from the institution who will receive notifications of claimed infringement from copyright holders and provide public notice on how to contact the agent. 

Additional requirements required of the OSP for liability limitation include:

• OSP must be a passive agent;
• OSP must develop and implement a policy and procedure for terminating the account of subscribers who are repeat infringers;
• OSP must not interfere with technical measures that a copyright holder may use to protect copyrighted works;
• OSP must expeditiously remove or block access to the materials alleged as infringed; and
• OSP must not benefit financially from the infringing activity.

Special OSP liability limitations apply to non-profit educational institutions.  When a faculty member or student infringes while teaching, studying, or conducting research, the OSP will not be held liable if:

• The infringing activity does not relate to instructional activities required for a course within the last three years;
• The institution has not received more than two infringement notices against that person within the prior three years; and
• The institution provides copyright information to its users.

Subsequent Rulemaking Re: Anti-Circumvention

In the DMCA, Congress directed that an ongoing, administrative rule making proceeding be held to evaluate the impact of anti-circumvention provisions on non-infringing uses of copyrighted works. The U.S. Copyright Office conducts this rule making proceeding every three years in conjunction with the Librarian of Congress.  In 2000, 2003, and 2006, exemptions went into effect that exempted certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works.

The 2000 and 2003 rulemaking proceedings resulted in these exemptions from prohibition against circumvention of technological measures that control access to copyrighted works:

• Compilations consisting of lists of Web sites blocked by filtering applications;
• Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsolescence;
• Literary works, including e-books, that restrict the “read-aloud” function permitting text to be spoken; and
• Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access.(Russell)

A summary of the 2006 anti-circumvention rule making proceedings can be found on the U.S. Copyright Office Web site:http://www.copyright.gov/1201/index.html.  These exemptions went into effect upon publication in the Federal Register on November 27, 2006, was to remain in effect through October 27, 2009, and has been indefinitely extended.

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

What is DRM?

Digital rights management (DRM) is a broad term encompassing technologies that control how digital content is used. See the position statement of the American Library Association, as well as links to a wide variety of other advocacy groups athttp://www.ala.org/ala/issuesadvocacy/copyright/digitalrights/resources/index.cfm.