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Overview of the legal provisions

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on December 17, 2006 at 12:48:45 pm

Enacted in 1998, the Digital Millenium Copyright Act (DMCA) responded to the exigency of increasing copyright infractions, particularly due to the growing ease of information sharing. In essence, it functions as an extension of copyright law and was incorporated into Title 17 of the U.S. Code. The legislation is divided into five titles, the first of which implements two treaties from the 1996 World Intellectual Property Organization (WIPO) and includes the infamous provisions that proscribe circumvention. The second title addresses the liability of internet service providers, while the third exempts copies of computer programs for computer maintenance. Title IV covers a number of miscellaneous copyright issues, including those related to education; and finally, Title V establishes the “Vessel Hull Design Protection Act”, creating new standards for the design of vessel hulls1. Hotly contested by groups claiming that sharing restrictions hinder advancements, the DMCA was implemented with the intention of protecting the rights of copyright owners. The DMCA has played a large role in the prosecution of piracy cases, as the internet has spawned numerous websites illegally distributing films, television shows, music and software; even vidding, which involves an individual publishing a set of selected clips to a soundtrack, has come under scrutiny.


Provision I-WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998


The DMCA’s first provision, entitled the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998” contains two parts, the second of which is considered the most controversial component of the DMCA. The first section modified U.S. copyright law to include works produced in the countries that participated in the WIPO Copyright Treaty caucus held in December 1996. WIPO is a specialized agency of the United Nations and according to its mission statement is "dedicated to developing a balanced and accessible international intellectual property system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest." These additions merely added technical definitions and references to the treaties within the text.


The second section contains the so-called “anti-circumvention” provisions. According to the text of the legislation, circumvention is defined as descrambling a scrambled work, to decrypt an encrypted work, or otherwise to bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” There are two types of security measures that copyright owners may employ, both of which are addressed under this provision, and are illegal to circumvent. The first of which is an ****access control****, which is defined as something that must be bypassed to obtain access to a work, like a password or encryption. Not only is it a violation to circumvent access controls, but also to provide tools to others that would help them do this (like linking to a site, bypassing a log-in screen, or distributing passwords). The second is a ****copy control****, which involves whether a protected material can be copied, how many copies can be made, and how long you can have possession of the work. The DMCA prohibits the manufacture and distribution of programs that can circumvent copy control securities; however, it is oddly not a direct violation of the DMCA to engage in the act of circumventing copy controls, but that falls under traditional copyright law. These provisions thus attempt to protect copyright owners and prevent the unauthorized duplication of copyrighted material. According to an August 2004 paper published by the Congressional Budget Office that addressed copyright issues in digital media, “Like the purchaser of a movie ticket, an Internet consumer would have to obtain the copyright owner’s authorization to view the movie by paying for the decryption key needed to view the digitized video file.” The DMCA also forbids the manufacturing or trafficking of products that are designed to elude technologies designed to protect copyrighted material. The enactment of this statute resulted in the necessity to change numerous products in order to make them compliant. For example, within 18 months of the DMCA’s ratification, all analog videocassette recorders had to be designed in accordance with Macrovision technologies, which prevented unauthorized copying of analog videocassettes and some analog signals.



Like most statutes, exceptions to the anti-circumvention rules exist, though each has a lengthy set of conditions that must be met in order to be legally exempt. To begin, law enforcement, intelligence-seeking and other circumvention acts deemed necessary by the government are acceptable. Furthermore, nonprofit library, archive and educational institutions are typically exempt, as are reverse engineering efforts, which would involve an individual lawfully obtaining a right to use a copy of a computer program in order to ensure it can concurrently run with other software. In order to identify vulnerabilities in online encryption, it may be necessary to try superseding the encryption; thus, such research would be tolerable under Title I. Furthermore, courts are granted the ability to circumvent protection measures that are necessary in protecting minors or to block technologies that may be collecting personal data about individuals. Finally, if an individual is testing the security of computers and has prior authorization, circumvention, or hacking, of access would be acceptable. Every 3 years, the Library of Congress is required to reexamine these exemptions to ensure that circumvention measures are not preventing the "fair use" of copyrighted work. On Nov. 27, 2006, the Library of Congress published its most recent exemptions (the largest number enacted yet); therefore a full list follows, with the newest additions italicized:



  • __Libraries, et. al__: can temporarily circumvent a system protecting a copyrighted work if they are determining whether or not to acquire that work and there is no other way to access it
  • second Reverse engineering__: software engineer can copy a computer program in order to ensure it can concurrently run with other software.
  • third __Security testing__: In order to identify vulnerabilities in online encryption, it may be necessary to try superseding the encryption (hacking); thus, such research would be tolerable
  • fourth __Courts__: Granted the ability to circumvent protection measures that are necessary in protecting minors or to block technologies that may be collecting personal data about individuals.
  • fifth __Film professors are allowed to create film compilations for the classroom; thus, they are able to bypass copy controls on DVD
  • sixth Preservation of certain programs__: Allows copy control to be circumvented for computer software and video games that require machines no longer available in order to preserve (3rd time).
  • seventh __Computer programs protected by dongles (small comp. attachments): can be circumvented if dongles prevent access due to malfunction or damage
  • eighth __eBooks for the blind__: circumvention of access controls for eBooks so blind users can use them with read-aloud software or screen readers
  • ninth __Cell phone users__: cell phone users authorized to break software locks on their phones to enable their use with competing carriers
  • tenth __CD testing__: Researchers allowed to test-copy protected CDs to find and correct security flaws and vulnerabilities.



Punishment for violating Title I

Copyright owners could file a civil lawsuit in federal court if the misuse of their protected property is covered under the DMCA. A plaintiff could potentially acquire a monetary settlement in addition to statutory damages if the judge rules in his or her favor. Defendants could face imprisonment or stiff fines up to $500,000 for first offenses and $1,000,000 thereafter.



Provision II-Online Copyright Infringement Liability Limitation Act (OCILLA)


This section benefits online service providers (OSPs), freeing them from paying monetary damages if they are compliant with the removal of content (made available through them) alleged to be a copyright infringement. In addition to granting them immunity from the innocuous transmission of copyrighted material, an OSP cannot be held legally responsible for the storage or linkage to such material, unless they refuse to remove it. In order to obtain this “safe harbor”, an OSP must follow a set of outlined procedures, involving an immediate removal (dubbed a “take down”) of the alleged copyright-infringing materials, notifying the responsible of its removal and disclosing the identity of the offenders to the copyright owner (if issued a subpoena). An example of how the takedown procedures would work follows (source: wikipedia.org):


  1. Alice puts a copy of Bob's song on her AOL-hosted website.
  2. two Bob, searching the Internet, finds Alice's copy.
  3. three Bob, searching the Internet, finds Alice's copy.
  4. four Charlie, Bob's lawyer, sends a letter to AOL's designated agent (registered with the Copyright Office) including:


  • contact information
  • second the name of the song that was copied
  • third the address of the copied song
  • fourth a statement that he has a good faith belief that the material is not legal
  • fifth a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
  • sixth his signature


  1. five AOL takes the song down.
  2. six AOL tells Alice that they have taken the song down.
  3. seven Alice now has the option of sending a counter-notice to AOL, if she feels the song was taken down unfairly. The notice includes


  • contact information
  • second identification of the removed song
  • third a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
  • fourth a statement consenting to the jurisdiction of Alice's local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which AOL is found.
  • fifth her signature
  • sixth AOL then waits 10-14 business days for a lawsuit to be filed by Bob.
  • seventh If Bob does not file a lawsuit, then AOL puts the material back up.




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