This federal statute addresses a number of copyright issues created by the increasing
use of the Internet for commerce in materials protected by copyright.
Because the Digital Millennium Copyright Act (DMCA) is relatively new, it has
recently undergone much interpretation by the courts and by copyright experts.
What has made the DMCA controversial—and why some critics have labelled
it as a para-copyright law—is that it outlaws attempts to get around processes,
methods, or devices that limit copying of copyrighted works. For example, if a
copyright owner installs a digital rights management (DRM) system that limits
copying of a
motion picture and a user circumvents the system (even without
copying the underlying movie), a violation of the DMCA has occurred. In short,
the DMCA has made it possible for a person to violate copyright law without infringing
a copyright.
The Act has numerous exceptions allowing for override of DRMs, including:
• works exempted by the Copyright Office, under rules to be issued in the future
• nonprofit libraries, archives, and educational institutions who need to decide
whether to add the protected work to their collections • reverse engineering for the purpose of determining interoperability (the
ability of computer programs to exchange information, and of such programs
mutually to use the information which has been exchanged)
• legitimate encryption research
• legitimate security testing
• law enforcement and intelligence activities, and
• legitimate consumer privacy needs (the need to disable the protective device
in order to prevent the unwanted acquisition of personal information
or the tracking of activities on the Internet).
The DMCA also prohibits the production, marketing, or sales of a product or
service designed to circumvent these technological protections. For example,
the movie industry was able to use the DMCA to prohibit circumvention of DVD
technology when it stopped a programmer from distributing a software code designed
to decode DVDs and permit their copying. (Universal City Studios Inc. v.
Corley, 273 F.3d 429 (2d Cir. 2001).)
The DMCA also puts restrictions on the import, distribution, and sales of analog
video cassette recorders and camcorders that don’t have a certain type of
copy-proof technology.
The DMCA prohibits the falsification of copyright management information
and the distribution of works that contain such falsified information.
The DMCA contains a number of provisions relating to transmission of copyrighted
materials over Internet services providers (ISPs). The DMCA takes ISPs off
the hook for infringement for transient transmissions automatically passing
through their computers. Under its “safe harbor” provisions, the DMCA also allows
ISPs to escape liability for infringement regarding more permanent materials
if they promptly remove infringing materials upon request. The DMCA sets
up a procedure in case the owner of the removed materials protests. In exchange
for escaping liability for infringement, service providers must designate
an agent to accept service of legal papers. The DMCA also relieves ISPs from liability
for unknowingly linking to a site that does contain infringing material. Finally,
the DMCA authorizes U.S. District Court clerks to issue subpoenas to
service providers requiring them to identify an alleged online infringer.
An example of how a safe harbor was used occurred when America Online
avoided copyright infringement liability for USENET postings in a case involving
famed science fiction writer Harlan Ellison. Ellison discovered that a fan had
scanned many of his short stories and uploaded them to the USENET newsgroup
alt.binaries.e-book. (USENET is an abbreviation of “User Network,” an international message board for members, called peers, whose computers connect to
each other via the Internet.)
Ellison filed suit against the fan and, among others, America Online (AOL), alleging
copyright infringement. He claimed that AOL was liable because the
newsgroup content was temporarily stored on AOL’s servers that are accessed
by its many subscribers.
The court concluded that AOL was shielded from liability by the safe harbor
for transitory communications because: (1) it satisfied the threshold requirements
for safe harbor protection discussed above; (2) AOL did not select, modify, initiate,
or direct the uploading of the copied stories or select who would receive
them; and (3) AOL’s storage of USENET messages—including the copied stories—
was transitory and not for longer than necessary to transmit or rout them to
users—this even though the messages were kept on AOL’s servers for 14 days.
(Ellison v. Robertson, 189 F.Supp. 2d 1051 (C.D. Cal. 2002).)
The DMCA allows a copy of a computer program to be made for the purpose
of repairing or maintaining a computer. In addition, the DMCA contains new
laws regarding the licensing of motion pictures and phonorecordings and the innovative
designs of vessel hulls.
Violations of the DMCA can result in civil remedies consisting of injunctive
relief, actual damages, and statutory damages. Repeat violators may be tagged
with treble damages. A willful violation of the DMCA for personal or financial
gain can result in stiff criminal penalties (up to ten years in prison).
The first criminal prosecution under the DMCA occurred when the U.S. government
indicted Dmitri Sklyarov for creating and distributing software that
could permit electronic book owners to convert the Adobe e-Book format. A
jury later acquitted Sklyarov of all criminal charges.
One of the most novel attempts at applying the DMCA occurred in 2003 when
a printer manufacturer, Lexmark, sued a rival company, Static Control Components,
that sold replacement toner cartridges. Lexmark’s printers contained a
software program that read information embedded on a chip in the toner cartridge.
If the toner wasn’t “authorized” (made by Lexmark or a licensee), the
toner cartridge would not work in the printer. Static Control created Smartek
chips that sent a message to the Lexmark printer authorizing the use of its toner
cartridges. Lexmark argued that the Smartek chips circumvented Lexmark technology
in violation of the DMCA. In March 2003, a district court in Kentucky
agreed with Lexmark and enjoined Static Control from selling its Smartek chip or
incorporating it in cartridges. (Lexmark International Inc. v. Static Control Components
Inc., 253 F.Supp. 2d 943 (E.D. Ky. March, 2003).)
use of the Internet for commerce in materials protected by copyright.
Because the Digital Millennium Copyright Act (DMCA) is relatively new, it has
recently undergone much interpretation by the courts and by copyright experts.
What has made the DMCA controversial—and why some critics have labelled
it as a para-copyright law—is that it outlaws attempts to get around processes,
methods, or devices that limit copying of copyrighted works. For example, if a
copyright owner installs a digital rights management (DRM) system that limits
copying of a
motion picture and a user circumvents the system (even withoutcopying the underlying movie), a violation of the DMCA has occurred. In short,
the DMCA has made it possible for a person to violate copyright law without infringing
a copyright.
The Act has numerous exceptions allowing for override of DRMs, including:
• works exempted by the Copyright Office, under rules to be issued in the future
• nonprofit libraries, archives, and educational institutions who need to decide
whether to add the protected work to their collections • reverse engineering for the purpose of determining interoperability (the
ability of computer programs to exchange information, and of such programs
mutually to use the information which has been exchanged)
• legitimate encryption research
• legitimate security testing
• law enforcement and intelligence activities, and
• legitimate consumer privacy needs (the need to disable the protective device
in order to prevent the unwanted acquisition of personal information
or the tracking of activities on the Internet).
The DMCA also prohibits the production, marketing, or sales of a product or
service designed to circumvent these technological protections. For example,
the movie industry was able to use the DMCA to prohibit circumvention of DVD
technology when it stopped a programmer from distributing a software code designed
to decode DVDs and permit their copying. (Universal City Studios Inc. v.
Corley, 273 F.3d 429 (2d Cir. 2001).)
The DMCA also puts restrictions on the import, distribution, and sales of analog
video cassette recorders and camcorders that don’t have a certain type of
copy-proof technology.
The DMCA prohibits the falsification of copyright management information
and the distribution of works that contain such falsified information.
The DMCA contains a number of provisions relating to transmission of copyrighted
materials over Internet services providers (ISPs). The DMCA takes ISPs off
the hook for infringement for transient transmissions automatically passing
through their computers. Under its “safe harbor” provisions, the DMCA also allows
ISPs to escape liability for infringement regarding more permanent materials
if they promptly remove infringing materials upon request. The DMCA sets
up a procedure in case the owner of the removed materials protests. In exchange
for escaping liability for infringement, service providers must designate
an agent to accept service of legal papers. The DMCA also relieves ISPs from liability
for unknowingly linking to a site that does contain infringing material. Finally,
the DMCA authorizes U.S. District Court clerks to issue subpoenas to
service providers requiring them to identify an alleged online infringer.
An example of how a safe harbor was used occurred when America Online
avoided copyright infringement liability for USENET postings in a case involving
famed science fiction writer Harlan Ellison. Ellison discovered that a fan had
scanned many of his short stories and uploaded them to the USENET newsgroup
alt.binaries.e-book. (USENET is an abbreviation of “User Network,” an international message board for members, called peers, whose computers connect to
each other via the Internet.)
Ellison filed suit against the fan and, among others, America Online (AOL), alleging
copyright infringement. He claimed that AOL was liable because the
newsgroup content was temporarily stored on AOL’s servers that are accessed
by its many subscribers.
The court concluded that AOL was shielded from liability by the safe harbor
for transitory communications because: (1) it satisfied the threshold requirements
for safe harbor protection discussed above; (2) AOL did not select, modify, initiate,
or direct the uploading of the copied stories or select who would receive
them; and (3) AOL’s storage of USENET messages—including the copied stories—
was transitory and not for longer than necessary to transmit or rout them to
users—this even though the messages were kept on AOL’s servers for 14 days.
(Ellison v. Robertson, 189 F.Supp. 2d 1051 (C.D. Cal. 2002).)
The DMCA allows a copy of a computer program to be made for the purpose
of repairing or maintaining a computer. In addition, the DMCA contains new
laws regarding the licensing of motion pictures and phonorecordings and the innovative
designs of vessel hulls.
Violations of the DMCA can result in civil remedies consisting of injunctive
relief, actual damages, and statutory damages. Repeat violators may be tagged
with treble damages. A willful violation of the DMCA for personal or financial
gain can result in stiff criminal penalties (up to ten years in prison).
The first criminal prosecution under the DMCA occurred when the U.S. government
indicted Dmitri Sklyarov for creating and distributing software that
could permit electronic book owners to convert the Adobe e-Book format. A
jury later acquitted Sklyarov of all criminal charges.
One of the most novel attempts at applying the DMCA occurred in 2003 when
a printer manufacturer, Lexmark, sued a rival company, Static Control Components,
that sold replacement toner cartridges. Lexmark’s printers contained a
software program that read information embedded on a chip in the toner cartridge.
If the toner wasn’t “authorized” (made by Lexmark or a licensee), the
toner cartridge would not work in the printer. Static Control created Smartek
chips that sent a message to the Lexmark printer authorizing the use of its toner
cartridges. Lexmark argued that the Smartek chips circumvented Lexmark technology
in violation of the DMCA. In March 2003, a district court in Kentucky
agreed with Lexmark and enjoined Static Control from selling its Smartek chip or
incorporating it in cartridges. (Lexmark International Inc. v. Static Control Components
Inc., 253 F.Supp. 2d 943 (E.D. Ky. March, 2003).)
