The Digital Millennium Copyright Act

 

On October 28, 1998 President Clinton signed a bill providing new game rules for the treatment and respecting of online copyrighted material. The Digital Millennium Copyright Act, (hereinafter referred to as the DMCA),1 passed both houses of the one hundred and fifth (105th) Congress earlier in the month.2

The DMCA adds two (2) new chapters to Title 17 as it strengthens international law worldwide and protects domestic technology. President Clinton was pleased with the measure.3

The one hundred and fifty (150)-page document divides into five (5) titles in Fig. 1 below:

Fig. 1

Note: Except for Title I (Treaty), each the following are effective upon enactment:

Title I: Implementation of two (2) treaties dealing with digital issues, copyright protection and management systems.

Title II: Limitation of Online infringement liability for ISPs ( Internet Service Providers) ( reducing legal uncertainties regarding such items as digital networks, strengthening anti-online piracy, outlining copyright owners’ notification procedures, defining university liability, and creating a "safe harbor" for ISPs in four (4) situational activities):

  1. Conduits (provision of materials transmission, routing and connections)
  2. System Caching (temporary or intermediate materials storage)
  3. User Storage (materials)
  4. Information Locators (linkage provision)

Note: 1 and 2: transmission must be initiated by a third party. 3 and 4: requires the ISP to be without knowledge or having reason to know of any infringement, to obtain no direct financial benefit and to not change the materials.

Title III: The Computer Maintenance Competition Assurance Act ( formerly H.R. 72) (creation of an exception for temporary computer program reproduction in maintenance/repair).

Title IV: "Miscellaneous Provisions" (distance education, exemption for libraries/archives, ephemeral (momentary) recordings).

Title V: "The Vessel Hull Design Protection Act"" (formerly H.R. 2696) (creation of new protections for boat hull designs, effective for two (2) years only).4

Oddly enough Congress handed down the measure around Columbus day.

It would seem Americans were in store for more than celebrating the discovery of the country. Although technically the Senate still must ratify international pacts before governments of the world give credence to the measure, the law does prepare for the ratification and execution of two (2) treaties regarding WIPO, The World Intellectual Property Organization. In December 1996 over one hundred and fifty (150) countries agreed on WIPO at a conference on digital information and copyrights in Geneva. The first treaty clears up digital authors’ rights. The second pact focuses upon the Internet and sound recordings. Thirty (30) nations must ratify the agreement for it to be effective globally.5

The DMCA is heralded by internet service providers, software industry groups, music/movie companies and the like. Attorney Jonathan Band, a partner in the Washington, D.C. office of San Francisco’s Morrison & Forester, L.L.P, practices copyright law. He states:

The Digital Millennium Copyright Act accomplishes four things... First, it implements the World Intellectual Property Organization treaties, thus harmonizing U.S. copyright law with international law. Second, the DMCA establishes "safe harbors" for online service providers who unknowingly transmit copyrighted works. Third, the act permits the copying of software during computer maintenance. Finally, the DMCA facilitates Internet broadcasting.6

However, members of the academic and research communities express mixed feelings about the measure. Some claim the DMCA would hinder concepts of fair use and other acceptable means of validly utilizing copyrighted materials. Most library organizations opposed the measure citing it does not contain many desired provisions. Specifically, according to Professor Bob Oakley, Library Director of the Georgetown University Law Center, H.R. 2281 will be a hindrance to reading, browsing, classroom teaching and applying of fair use standards:

HR 2281, as drafted, would grant copyright owners a new and unrestricted exclusive right to control access to information in digital works which could negate one of the most basic principles...the ability to gain access information in published or publicly available works...7

Many groups voiced support and opposition for the bill.8 The Digital Future Coalition, a forty-two (42) member organization comprised of non-profit and for-profit entities interested in intellectual property law in the digital era, opines:

In the final version of the DMCA, Congress recognized the importance of ensuring balance in the treaty implementing legislation. The DMCA safeguards such crucial activities as computer security testing, reverse engineering to achieve interoperability, the protection of personal privacy, parental supervision of minors on the Internet and the preservation of materials by libraries and archives. It also assures the availability of the next generation of consumer electronics and computer products. In addition, it provides a mechanism to assure the continued vitality of the fair use privilege enjoyed by teachers, students, library patrons and all other information users. These provisions represent a dramatic departure from earlier drafts of the legislation….10

Another bill, The Digital Era Copyright Enhancement Act, H.R. 3048, is still awaiting approval. The measure included an increase for the preservation of author’s rights similar to the provisions in the Berne Convention for the Protection of Literary and Artistic Works. In March 1989 the United States joined the Convention that produced a multinational treaty.11

H.R. 3048 amends the first sentence of section 107 of The Copyright Act by adding "analog or digital" in applying fair use to all transmissions.12 In actual comparison, H.R. 3048 includes many safeguards lacking in H.R. 2281. Among them include legal protections with allowances for the creation of incidental copies, fostering of distance learning13 protecting of consumers against so-called shrink wrap licenses, negating of ephemeral copyright liability (i.e. making copies incidentally in relation to computer operation), preserving of microfiche technologies, exempting library/archive uses (allowing for the making of temporary computer program copies and utilizing a "knowledge" test as the basis for civil liability; note that criminal liability is not available at this level)14, and, most importantly for many, the preserving of fair use doctrinal principles.15 Indeed the two bills have been very much compared and contested of late.16

H.R. 3048 indeed expands the fair use doctrine toward notions that library, teaching and research purposes fall into acceptable practices in relation to technological advances. Penalties apply against infringers rather than those on the fringe who may wish to legally and ethically utilize materials.17

According to the Software Publishers Association, copyright piracy costs over eighteen (18) billion dollars worldwide.18 Regarding penalties and liabilities, in general, the DMCA’s Sections 1203 and 1204 imposes updated standards and gives guidance for works on the Net especially regarding criminality. Plaintiffs recovering successfully for wrongdoing have the choice of illegally obtained profits, statutory damages or injunctive relief. In a year and a half, it will be unlawful to create or sell any technology used to break copyright protection devices. It also will be illegal to commit acts of circumvention as each will carry statutory damages of twenty-five hundred dollars ($2500.00).19 And, in a limited manner, willful and purposeful defendants could face serious criminal penalties of several hundred thousand for each violation.20

The DMCA contains many criminal impositions for conduct unrelated to infringement. For example section 104 provides for violations regarding circumvention of copyright protection systems in section 1201 or integrity of copyright management in 1202. Anyone who violates either section for "purposes of commercial advantage or private financial gain" faces up to five hundred thousand (500,000) dollars or imprisonment of up to five (5) years, or both for the first (1st) offense. The penalty is up to one million (1,000,000) dollars and up to ten (10) years, or both, for subsequent offenses.21 DMCA sections 1204 a & b. Courts will have the power to award triple damages against repeat offenders. A five (5) year statute of limitations applies here.22 H.R. 3048, on the other hand, applies civil relief rather than criminal punishment.

And, H.R. 3048 provides that "no person, for the purpose of facilitating or engaging in an act of infringement, shall engage in conduct so as knowingly to remove, deactivate or otherwise circumvent the application or operation of any effective technological measure used by a copyright owner to preclude or limit reproduction of a work or a portion thereof."23 The DMCA makes it illegal to "manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component or part thereof " that may be used to circumvent a technological protection measure.24 The law affords protection toward encryption research, security testing and related matters. And devices as to safeguard against child pornography on the Internet were given exemption in this respect.

Conclusion

There are several bills such as H.R. 3048 still on Congress's plate. The DMCA is a massive complexity of rules and regulations. If we are to advance in the digital age, we must have a compromise between right and rule. It will be a test of time as to whether or not the Clinton administration’s efforts will be a cure or a curse for the new millenium in copyright. The only way to examine the DMCA's validity is by trial and error. Unfortunately we will be cursed with many of each.

Endnotes

  1. H.R. 2281 in the House of Representatives, and S. 2037 in the Senate (S. 1121, abandoned with the passage of this legislation).
  2. The complete text is found at <http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281>; see, generally, <http://www.loc.gov/copright>, <ftp://ftp.loc.gov/pub/thomas/cp105/hr796.txt>, and <ftp://ftp.aimnet.com/pub/users/carroll/law.copyright/h2881enr.txt>. For a comprehensive analysis, see The Digital Millennium Copyright Act, by Mark Radcliffe at <http://www.gcwf.com/articles/interest/interest_11.html>.
  3. Statement by the President, Office of the President's Press Secretary, The White House, October 12,1998, at <ftp://ftp.aimnet.com/pub/users/carroll/law/copyright/h2281- res.txt>.
  4. See, e.g., <http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.enr> and <http://abanet.org/intelprop/hr2282.html>. For a better understanding, see The Software Publishers Association, <http://www.spa.org/govmnt/iprt/dmcasumdraft.htm>.
  5. See, e.g., New Global Treaties Protect Copyrights Online, by Ralph Oman, Law Journal Extra, at <http://ljx.com/copyright/p4global.htm>.
  6. Lawyers and Technology: The Sound of One Computer Copy, by Wendy Liebowitz, Law Journal Extra, (citing The National Law Journal), November 2, 1998, p. A16 (emphasis added), at <http://www.ljx.com/news/dime.htm>.
  7. American Library Association News and Views, June 10, 1998 at <http://www.ala.org/news/copyright.html>.
  8. Association of Research Libraries, Washington, DC at <http://arl.cni.org> (Press release, Sept. 29,1998).
  9. Digital Future Coalition, October 16,1998, at <http://ari.net/dfc/issues/wipo/pr101698/pr101698.html>.
  10. The bill is located at <http://lcweb.loc.gov/copyright/penleg.html>; <http://thomas.loc.gov/cgi-bin/query/D?c105:1/temp/~c105OrOe2w:ell1128> and <http://www.panix.com/~jesse/pending_legislation.html#treaty>.
  11. 11. See Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (codified in 17 U.S.C.A. sec.101 (1996)).
  12. H.R. 3048 sec.2.
  13. Id at sec. 5
  14. Id. at sec. 3
  15. Id. at sec.4.
  16. For detailed, side-by-side comparisons of the two bills, see <http://www.ari.net/dfc/legislat/wipo.htm> and The Digital Future Coalition at <http://www.dfc.org/issues/wipo/head2hd/head2hd.html>; see also <http://weber.u.washington.edu/~daryn/copyright/legislation.html> as well as The American Library Association at <http://ala.org/washoff/boucher.html>.
  17. See, e.g., the Home Recording Rights Coalition's views at <http://hrcc.org/111497pr.html>.
  18. <http://www.spa.org/govmnt/iprt/wipotalk.htm>.
  19. See, e.g., Digital copyright bill becomes law, by Courtney Macavinta, October 28, 1998, at CNET NEWS.com, <http://www.news.com/News/Item/0,4,28060,00.html?owv>.
  20. Id.
    21.
  21. DMCA sections 1204 a & b.
  22. Id at section 1204 (c). See, e.g., <http://spa.org/govmnt/iprt/wipotalk.htm>.
  23. 23. H.R. 3048 at <http://thomas.loc.gov/cgi-bin/query/c?105:1:.OrOe2w:e1128>.
  24. DMCA, section 1201(b).

 

 

Critical Reviews

B
It's a great topic for Tech Source and a pretty decent article and we should move ahead with it I think, though it by no means exhausts our need for work on the legal aspects of technology and education. It definitely needs some work, however, before its debut.

In particular, it really needs an improved introductory section that spells out in specific terms why the topic is important. Everyone knows copyright is important, but real-world examples of problems we currently (or will soon) confront that would be alleviated by the new law would be very helpful for lay readers. The current introduction is not much of an introduction at all for those who may not know much about the topic.

The author might also consider taking a stand himself as a way of giving the article greater focus. A straight review piece is okay, but he should tell us that is what he's doing right up front so we don't expect more.

We might also consider including links within the article to the various organizations commenting on the new law and even a "for more info" box that has logos and brief descriptions of WIPO, DFC, etc. along with links to them and their work.

AA
I agree that this topic is one of importance, and very appropriate for TS. I also agree that examples of the potential impact the DMCA might have, if it remains as enacted, would be helpful. A missing piece in the article (and one that is of tremendous importance to the educational and library communities) is this (from the EDUCAUSE Web site http://www.educause.edu/issues/digitaltech.html):

As required by Section 403 of the DMCA, the Copyright Office is conducting a study on how to promote distance learning through digital technologies, while "maintaining an appropriate balance between the rights of the copyright owners and the needs of users of copyrighted works." The Office is directed to consult with representatives of copyright owners and nonprofit education and library institutions. Recommendations are due to Congress by April 28, 1999.

A timetable for that study can be found at http://lcweb.loc.gov/copyright/disted/.

The fact that EDUCAUSE (see http://www.educause.edu/issues/dmca.html), AAUP (see http://www.aaup.org/0126test.htm), the Association of Research Libraries (see http://www.arl.org/info/frn/copy/dmca.html), the American Library Association (see http://www.ala.org/washoff/ip.html), and the membership of the Digital Future Coalition (see http://www.dfc.org/about/members/ members.html) are actively participating in the study reinforces the critical importance of this issue to higher education.

Somewhat unclear is the relationship between HR 2281 and HR 3048. It would helpful to clarify how adoption of HR 3048 would impact the already adopted HR 2281. Elaboration on why HR 3048 is generally considered to more acceptable to the organizations named above.

The links in the endnotes are helpful; however, at least two of the links that I checked are no longer valid: http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281 and http://www.ari.net/dfc/legislat/wipo.htm

The article as it stands is quite confusing. While I certainly don't claim to understand all of the ins and outs, I have at least a nodding acquaintance with the issue and receive regular updates through several organizations. I found the presentation to be somewhat convoluted as the author moved from one bill to another, to references to the US Code, etc.  For a DMCA "novice," I think the
article as it stands muddies the waters.

An article on the topic should appear in TS as soon as possible, and I think the author should be given the opportunity to revise his work based the editorial board member's comments; I think the article requires major revisions.

 

V

The topic of "The Digital Millennium Copyright Act" is important to educators, but, as is, the article lacks focus and shouldn't be published. The writer needs a clearer sense of audience and purpose. For our journal, the audience should be educators. (The audience determines, to a large extent, purpose.) I'd suggest recasting this article to focus on the specific implications of this act for educators.