The Digital Millennium Copyright Act (DMCA) Claire Stewart MM450 February 14, 2006

Overview of DMCA Spurred by rapid growth of WWW/Internet Preceded by new WIPO treaties (which followed failed U.S. legislation) Anticircumvention, service provider protections, criminal remedies, and hull design protection

How did it come to pass? “Copyright owners argued that … if the Internet weren’t made safe for copyright owners, either all the people in all the other countries would get together and steal all our stuff, or U.S. copyright owners would decline to put their stuff on the Internet (because it wasn’t safe) and the United States might lose the advantage of world leadership on this new medium.” -Jessica Litman, “Digital Copyright”

What was happening in mid-90’s Mosaic, the first widely used web browser, was released in 1993

What was happening in mid-90’s “It is wrong for the industry to believe that for some reason new media presents a brand new way of communicating and publishing where the old copyright norms do not exist.” -Marc Pearl, Information Technology Association of America, quoted in Nov Guardian (UK) article

Precursors National Information Infrastructure (NII) Working Group on Intellectual Property White Paper, 1995: –RAM copies are copies –Transmission over internet exercises several exclusive rights, including copying, performance, and display –Urged harsh criminal penalties for copyright infringement –Proposes a new section in the copyright law prohibiting technologies that circumvent protection mechanisms –Fair use will not be necessary because licensing will be so easy and cheap that everyone will just pay per view –What was “first sale” is now copying and distributing

Precursors H.R and S –Proposed legislation appended to NII white paper –Died in committee in 1996

WIPO/TRIPS World Trade Organization –January 2005 the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement went into effect –Protects computer software as literary works, protects database compilations, right to prohibit video rentals, right to prohibit recording of broadcasts WIPO: World Intellectual Property Organization, part of the UN –December 1996 WIPO conference –U.S. proposed a number of new terms based largely on the NII White Paper –WIPO passed a watered-down version

Circumvention DMCA prohibits manufacture, sale and distribution of anti-circumvention technology Technologies must not be primarily designed to circumvent, or have few uses other than circumvention (echoes of Sony Betamax) Access control mechanisms Copy control mechanisms

Copyright management info Illegal to remove any copyright identification information Illegal to falsify copyright management information with the intent to “induce, enable, facilitate or conceal infringement”

Remedies New criminal penalties Up to 5 years in prison for first offense, up to 10 years in prison for second

ISP protections “Safe Harbor” Limitation of liability: injunctive, rather than monetary, relief Sets forth circumstances that must apply in order for the service provider to be exempt from liability Must register with Copyright Office Notice and takedown rules

Miscellaneous Digital performance, sound recordings: temporary copies for transmission purposes Motion picture rights: obligation to continue royalty payments Vessel Hull Design

Exceptions Some limited exceptions enumerated: library purchase, personal privacy, encryption research, etc. Periodic rulemaking by the Library of Congress

EFF on Rulemaking “Although consumers and public interest groups have repeatedly participated in the DMCA rulemakings, the Copyright Office has not recommended a single DMCA exception responsive to the submitted comments of literally hundreds of digital media consumers. Instead, the rulemaking process has repeatedly discounted consumer concerns.” -Electronic Frontier Foundation, "DMCA Triennial Rulemaking: Failing Consumers Completely":