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Your Guide to The Digital Millennium Copyright Act of 1998

Your Guide to The Digital Millennium Copyright Act of 1998

There have been many and various types of
copyright acts amended or modified to the original and first Copyright Act of the
United States, the Copyright Act of 1790. One of the main reasons for such
provisions is simply the fact that technology and science have advanced
tremendously since the first copyright law’s inception, and unfortunately, has
also offered an avenue for piracy and copyright infringement.

With the seemingly infinite amount of
information and material available on the internet, it seemed only a matter a
time until illegal activity would be found to proliferate with its use, with
copyright infringement being one of the key occurrences. Therefore, the 105th
United States Congress made a motion to implement legislation to curtail and
limit the amount of piracy and copyright infringement on the internet, which
also included other various electronic sources and technological advancements.
The Digital Millennium Copyright Act of 1998 would become the Copyright Act whose
mission was to put an end to such criminal actions. 

The Digital Millennium Copyright Act would
implement into United States law two treaties as provided under the World
Intellectual Property Organization, or WIPO. These two treaties would be known
as the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
Furthermore, the Digital Millennium Copyright Act, or DMCA, would also
implement its own copyright-related provisions in the new United States
legislation.

The Digital Millennium Copyright Act is divided into five subsections, each
detailing specific restrictions or regulations for copyright infringement and
anti-piracy control. The first sections essentially address the two treaties
originally drafted by the WIPO. The first issued addressed is that the United
States will comply with the WIPO treaties and their respective provisions.
Firstly, the United States must recognize the copyrighted works or materials of
foreign countries, as well as those works that have been made
available–legally or illegally–in the U.S. but not yet in their original
country of origin.

Secondly, the U.S. would recognize all
foreign copyrighted work, even though those may have not been registered with
the United States Copyright Office. This provision was important because of the
fact that the U.S. will not allow for lawsuits of copyright infringement to be
made if the work is not properly registered with the the Copyright Office once
the work is published or distributed commercially. This allowed for the owners
of copyrighted works or materials of foreign countries to bring infringement
suits, even if not registered under United States legislation. 

The third and last WIPO provision adopted by
the DMCA deals with the technology, services, or electronic devices used to
circumvent measures to obtain access to copyrighted material. Employing such
measures would be considered unlawful and prosecutable under criminal law in
the United States. This provision also extended to include the use of
circumvention of technological protection measures to gain access,
regardless of whether or not copyright
infringement is committed. The action itself of bypassing control measures would be
considered illicit. 

It also includes a provision for maintaining
illegal the action of copying a copyrighted work without the original copyright
owner’s consent, regardless of the measures employed to gain access to the work
itself. An exemption to this provision includes the copying of a work for
legitimate purposes. In other words, under certain circumstances, the bypassing
of technological protection measures may be allowed to make a copy of the work
for legal purposes, but not in the case of circumventing for illegal purposes
or without the consent of the copyright owner. This provision also includes the
manufacturing, production, distribution, or marketing of any device, program,
or software that is meant for the illegal bypassing of protection measures. 

There are exceptions allowed by the Digital
Millennium Copyright Act for the use of bypassing technology measures, as well
their respective devices or software. These exemptions include:



         Use
by/for Law Enforcement purposes

         Non
profit libraries and educational institutions

    The exceptions are made with the condition that these institutions may
circumvent protection measures only to review a certain work for inclusion for
legal use at a later time, with the intentions of legal acquisition.

         Reverse
engineering

    The exemption is made for the
bypassing of technological measures for the purpose of research and scientific
study by an authorized individual for the analysis of computer programs and
their possible compatibility with other existing programs, as long as such
action coincides under other copyright acts and laws.

         Encryption
research

    In order to verify and account
for possible flaws in the actual technological means implemented to prevent
illegal access to copyrighted material and other encryption technology, as
approved by law.

         Protection
of minors

         Personal
privacy

    The circumvention is allowed when
such technology may collect personal information of a user regarding online
activities without the user’s permission.

         Security
testing of computers


The second section of the Digital Millennium Copyright Act refers to an
internet service provider’s plausible liability for copyright infringement or
piracy committed by its users. It states that ISPs are responsible for the actions
of their user’s and cannot be held liable, as long as certain implementations
are applied by the ISP. This includes informing their users by instituting a
policy which makes it clear that copyright infringement is illegal and that
using their service for such purposes will lead to the cancellation of the
service, as well as applicable punishment by law. 

A copyright holder may seek to subpoena an
ISP in order to provide information regarding particular users responsible or guilty of copyright infringement.
Furthermore, ISPs must also be considered as enacting one of the following as
part of their service to not be considered liable:



         Transitory
communications

         System
caching

         Storage
of information on networks or systems

         Information
location tools


The third section simply states that individuals may make copies of copyrighted
material or programs on computers for the purpose of repair or maintenance.
Once the repairs are done, such copies must be destroyed immediately. Such
computer programs must have been lawfully installed in the computer as a condition of this provision. 

The fourth section deals with miscellaneous
provisions as the use of ephemeral copies for broadcast purposes, such as
making a copy of music onto a hard drive for convenience
and programming purposes. Other examples include distance education, library
copies of phonorecords, webcasting issues, and motion picture agreements
between producers and compensation of actors, writers, and/or directors. The
fifth provision deals with the use and protection of original designs as
“useful articles” and refers to hulls of vessels no longer than 200
feet.

The Digital Millennium Copyright Act of 1998: Anti Circumvention Exemptions

The Digital Millennium Copyright Act of 1998: Anti Circumvention Exemptions

The Digital Millennium Copyright Act of 1998 is the attempt to regulate copyright infringement and piracy acts as they occur in modern times. With the growing availability and progression of technologies and science, criminals have the unfortunate access to implement criminal activity on a new level. Their technological understanding and ability to apply their scientific knowledge for illicit use and criminal activity is well documented and has been a growing concern and even tougher to regulate.
The Digital Millennium Copyright Act, or DMCA, is an attempt to control copyright infringing activity, particularly with its common occurrence and efficiency on the internet. Much of the criminal activity relating to copyright infringement deals with the circumvention of technological programs or software intended to prevent or protect copyrighted material from being infringed, pirated, or tampered with. 
The DMCA is charged with the complex dichotomy of having to balance the availability of certain materials and information to those who seek to legitimately employ them, while allowing for restrictions and regulations to curtail and digress copyright infringement and piracy without imposing people’s rights to such information. 
Though the Digital Millennium Copyright Act has proven to be effective to an extent in its strict policies and legislature regarding circumvention, it does provide for certain copyright exemptions to specific individuals or factions that would benefit from access to such material and intend for its legal and righteous use. 
The most obvious of these copyright exemptions is extended to members of law enforcement and other governmental factions appropriately authorized to circumvent these technologies and devices for purposes of intelligence gathering and other related governmental activities. 
Aside from this general provision, there are six other copyright exemptions granted to particular organizations,individuals, or circumstances that may need to circumvent access control measures to obtain certain works and/or materials for lawful use:
1. Non-profit library, archive and educational institutions
2. Reverse engineering
3. Encryption research
4. Protection of minors
5. Personal privacy
6. Security testing 
The first exemption is for non-profit libraries, archival facilities, and educational institutions. They are granted copyright exemptions on the basis that the reason for circumventing technology measures is for the sole purpose of determining and analyzing the copyrighted work or material for their eventual inclusion to their collection. 
The provision assumes that such circumvention is necessary in order to evaluate the work properly, and thus, if decided to have access, will do so by undergoing the necessary authorization processes for their legal attainment after such evaluation deems access necessary.
Another copyright exemption exists for the purpose of reverse engineering. Certain organizations may need the authority to circumvent technological measures implemented on computer programs or software for the purpose of analyzing or identifying any particular use with or compatibility with other programs already available. Sometimes, certain devices or technological means for circumvention may need to be developed and created for such a purpose, which is also covered under this copyright exemption. 
However, such individual or organization must have the proper authorization before circumvention of the protective means is undertaken with the sole intention of analyzing the components and functions of the software or program and not for other purposes deemed illegal or infringing under copyright law
Encryption research is one situation that would deem the circumventing of protective means, simply because of the very nature of the circumstance. Therefore, such a copyright exemption is granted. This permits for the proper study, analysis, and assessment of all types of encryption technology being employed in various settings. 
The situation may deemed crucial for certain organizations such as banks to test their security measures for any possible flaws that criminals may exploit for illegal purposes. The circumvention of the protective measures, therefore, becomes necessary in order to evaluate the security measures themselves.
The protection of minors is also a copyright exemption for the purpose of limiting and restricting the material that is available to children on the internet. There is much explicit material to be accessed through various means on the internet and certain types of circumvention measures may have to be implemented by denying or restricting a particular aspect of a program or computer software that would modify its original content, thus, being copyright infringement. Such circumvention measures for the protection of minors is now being implemented as part of the programs themselves as technology progresses.
The situation is similar for the personal privacy copyright exemption. The Digital Millennium Copyright Act allows for certain circumvention measures to occur if the device or method implemented for such protection of access of the copyrighted material is capable to collect personal information of the user and/or his/her internet activities while seeking access to the material or works.
Lastly, security testing also warrants a copyright exemption because circumvention of technologies is necessary in order to evaluate the system’s efficiency and correct function. Similar to encryption research, the testing of a computer and its networks for flaws may be crucial and the use of circumventing methods is allowed in order to determine and evaluate the safety capacities.
All copyright exemptions are granted under the Digital Millennium Copyright Act with the assumption that the participation of technology or security measure circumvention is for the purpose of accessing the protected copyrighted material for lawful purposes and righteous intentions. Any digression toward illicit activity while exercising such exemptions renders it void and the penalties are subject to copyright and criminal laws.

Know The Digital Millennium Copyright Act of 1998 Criticisms

Know The Digital Millennium Copyright Act of 1998 Criticisms

The Digital Millennium Copyright Act has its intentions ultimately rooted in justice and the aversion of criminal activity, such as copyright infringement and piracy. Since its implementation in 1998, the Digital Millennium Copyright Act has undergone much scrutiny and criticism. The debate itself has become quite a political issue, almost rivaling topics such as gun control and gay marriage in terms of heated arguments and an equally comparable stalemate of the issue.
This particular copyright law seems to be opposed mostly by those in the realms of science and technology, particularly those involved with certain aspects of research and cryptology or encryption applications. Other factions opposing this Copyright Act legislation are certain types of software companies, and ironically enough, some musicians and other kinds of performing artists.
The Digital Millennium Copyright Act has had a profound impact on the level at which certain types of scientists and researchers can actually apply their skills and publish their findings. The area that is most affected is that of cryptography, which is limited by the copyright law provision regarding circumvention of technological implementations.
Cryptography, in its very nature, requires the circumvention of such copyright protection technology for the purpose of further understanding and analyzing any possible fallacy that may occur in particular computer program or software.
An excellent example of this very situation is when cryptography researcher Niels Ferguson undertook the task of working with Intel software and will not make his findings public or release them for fear that he may be prosecuted under criminal and copyright laws. It has been stated that Ferguson found certain fallacies or vulnerabilities with the particular Intel system he was researching at the security levels it implemented.
Even though the Digital Millennium Copyright Act allows for the legal exemption for encryption research and security testing for the circumventing of copyright security measures, the fear that the company may sue and prosecute is quite validated. In recent times, the controversy of copyright owners, be it individually or at the corporate level, have been cited as being overzealous in their attempts to limit the access to copyrighted material without expressed compensation of some sort.
More and more websites and service providers have been either restricting much of their copyrighted content–even if legally accessed–or simply removing it altogether. Though many times this situation occurs, the copyright owner or the webmaster are fully aware of the extent of copyright law and the copyright owner’s requests may be unwarranted. However, the possible consequence of a copyright law infringement suit seem to be of a worse nature and many websites and/or service providers take the material down without argument rather than risk being brought to trial.
This has led to another controversial issue regarding the Digital Millennium Copyright Act and its provision regarding take down notices. The arguments stem from the copyright law giving too much authority to copyright owners and facilitating the process for take down or restriction of copyrighted material or works to an unfair extent.
Other arguments point out that the copyright law restricts the concept of fair use far beyond acceptable, it facilitates the imposition of monopolies over certain types of products, such as printer companies not allowing third party companies to make printer ink cartridges for their models. Furthermore, the restrictions of this copyright law have impeded free expression, which is far more important as a civil right and natural liberty.
Certain musicians and performing artists stand against the Digital Millennium Copyright Act because of the fact large music corporations are restricting the use of copyrighted material and recordings to be shared openly on the internet. Furthermore, for many musicians, the open availability of their music to potential fans is crucial to their plausible success.
With most of the music industry shifting its gears toward electronic sales of recordings and albums, rather than CDs, the internet has become a viable source to distribute music, as well as garner new fans. Though the plausibility of music and recordings being illegally downloaded and distributed is still prevalent, music companies that own the copyrights to an artist’s or group’s music ultimately have the say in how it is made public and distributed.
Some of the use of the copyrighted material is not infringing on copyright law, but it is still being restricted by the copyright holders which, in many cases, are the music companies and not the actual musicians or artists themselves.

The Digital Millennium Copyright Act of 1998 Online Copyright Infringement Liability Limitation Act

The Digital Millennium Copyright Act of 1998 Online Copyright Infringement Liability Limitation Act

The Online Copyright Infringement Liability Limitation Act is covered under Title II of the Digital Millennium Copyright Act. The Online Copyright Infringement Liability Limitation Act, or OCILLA, was enacted as a form of protection from liability of piracy and copyright infringement for online or internet service providers. 
The OSPs and/or ISPs are exempt from liability if certain implementations are imposed and if they meet certain guidelines, as provided by the copyright law provision.
In order to qualify for the limitations on liability, the Online Copyright Infringement Liability Act requires the ISPs and OSPs to comply with four categories according to their nature of service: 
1. Transitory communications
2. System caching
3. Storage of information on networks or systems
4. Information location tools
Secondly, limitations of liability are also contingent in that the service provider meet two conditions. First, a certain policy must be implemented that warns and informs their users that such illegal activities of piracy and copyright infringement will not be tolerated and that multiple offenses are grounds for service termination, and the user may also be liable to criminal prosecution as stated under Federal legislation. 
Second, service providers must not interfere with the measures instituted to the verification, identification, and protection of copyrighted materials by copyright owners. In other words, if a work is considered or identified as infringing on copyrights, the service provider must not allow access to its users to such works or materials. Upon receiving notification from the proper copyright owner, the service provider must block and remove such work from availability to its users.
This provision also allows for service providers to be exempt from liability from their users themselves. If a user claims that a certain work is not infringing and gives proper notice to the service provider regardless of its actual nature, then a service provider will not be held liable and it is the responsibility of the user to be accountable for the use of that material if it is to be deemed infringing or piracy as determined by law. 
This allows for subpoenas to be made to service providers to make the identities of their users known if the users are found to be violating copyright infringement restrictions. A service provider is, therefore, not liable for any monetary damages as long as it complies with these basic guidelines.
Other requirements also include that a service provider not stand to make a financial gain from the copyright infringing activity, knowledgeable or otherwise. If infringing works or material exists, they must not have prior knowledge of it being readily available to its users, and if such is the case and copyright owners notify service providers of such occurrence, they must either block or remove the infringing or pirated material from access.
Furthermore, there are further provisions implemented on the four copyright liability categories of transmitting, caching, storage, and linking. For transmitting, the general provision for liability limitation as stated by the Digital Millennium Copyright Act is that the provider simply acts as a method of transport or transmission of data from one location to another at the request of a third party. 
This includes transmission, routing, or connections that may relay the data, and copies are made for the purpose of recording and operation of the network itself. The following liability limitation requirements for transitory communications must also be met:
Transmission must be requested by another party beside the service provider;
The transmission, routing, or connection must be initiated by an automatic response, without the actual selection of the material being carried out by the service provider;
The service provider, therefore, does not determine the material nor the recipients of such material;
The copies themselves are not available to anyone other than the original party making the request;
The material or information is not changed or modified in the transmission process.
System caching liability limitations state, as per section 512(b) of the Online Copyright Infringement Liability Limitation Act, that a service provider is exempt if storing of copies of material is made available by another party besides the service provider and the information is requested and sent to such a party. The service provider stores copies of the material for the sole purpose of being able to fulfill subsequent requests for the same material and dispatching a copy, rather than accessing the original source. Other conditions also apply:
The material must not be changed;
Any material posted by a user that has not been appropriately approved by the copyright owner must be removed, both at the service provider’s site and the user’s as well;
The provider must not interfere with the “site hit” count information or software used to calculate such information;
The provider has the responsibility of providing new and updated information of a particular work or material so as to prevent the transfer of outdated data and comply with the original source’s updated material.
The liability limitations of section 512(c) of the Online Copyright Infringement Liability Limitation Act are the ones that are most commonly observed and occur. This Section states that service providers are not liable to infringing material or works found or placed on websites within their network. Furthermore, liability limitations are also contingent based on:
The provider not having a prior knowledge of the website containing infringing works or materials;
The provider has the legal access to such material, but does not gain from its use monetarily or financially;
If the proper copyright owner notifies the service provider of the infringing material, the service provider must block its access or remove it from its network;
The provider has assigned an agent responsible to receive such notifications of infringement;
The provider must follow the statutes under the Take Down and Put Back provisions.
Limitation location tools are designated to encompass the use of hyperlinks, online directories, and search engines. The liability limitations under the Online Copyright Infringement Liability Limitation Act refer to the service provider linking its users to a site that contains infringing or pirated material. The following qualifications must be met in order to be exempt from liability:
The provider does not have a prior knowledge that the site being linked contains infringing or pirated material;
The provider has gained legal access to control such material and stands to make no financial profit from its use by the provider’s users;
If the proper copyright owner makes a notification of the infringing or pirated material, the service provider must remove it from its network or block it from its users immediately.

The Digital Millennium Copyright Act of 1998 Overview

The Digital Millennium Copyright Act of 1998 Overview

Online Copyright Infringement Liability Limitation Act
The Online Copyright Infringement Liability Limitation Act is found under Title II of the Digital Millennium Copyright Act, which creates provisions that prevent online service providers and internet service providers a source of protection against copyright infringement liability. 
Such a movement became necessary because of the vast amounts of information that can be transferred and accessed via the internet, and the plausibility for copyright infringement is of real concern.
This Section provides for the various provisions, eligibility requirements, and exceptions that must be met or adhered to by service providers to be protected from copyright infringement implications and potential legal consequences. 
The legislation allows for the classification of four limitations on liability for service providers such as transitory communications, system caching, storage of information, and information location tools or linking. Service providers must adhere to the specific requirements outlined for each classified action or situation in order to be exempt from possible infringement liability.
Anti-Circumvention Exemptions
The Digital Millennium Copyright Act addresses the common issue of circumvention of technological means for obtaining or accessing copyrighted material without permission or proper authorization. Such measures are imposed in order to prevent the illicit use, copying, and tampering of copyrighted works or materials.
Often, the circumvention of such protection measures is for the purpose of piracy, making copies of copyrighted works with the intention of illegal distribution for the ultimate purpose of monetary gain. However, in certain situations, the circumvention of security measures is necessary to access or legitimately or lawfully use copyrighted works or materials. Such exemptions are reviewed and can be amended every three years.
The exemptions are proposed by the public and submitted to the United States Copyright Office. Each exemption remains valid for the three year period until new proposal hearings are held. Prior exemptions made in past hearings expire with each time a hearing is held and, thus, must be proposed again for re-evaluation every three years.
Criticisms
The purpose behind the Digital Millennium Copyright Act is to simply curb and restrict the occurrence of copyright infringement and violations that are susceptible to occur in various ways. Concurrently, it also allows for the prevention of holding liable certain parties, such as service providers, for copyright infringement that is not directly committed by them, but more accurately, users of their services or third-party entities.
However, the restrictions, regulations, and exemptions have been the topic of controversy, citing reasons such as copyright holders taking advantage of the legislation and abusing their power to control the availability of their copyrighted works or materials to the public.
Scientific research in the cryptology field has also suffered because of the copyright law’s implementations for fear that carrying out their inherent duties in analysis and scientific study of technology can be considered infringement by certain copyright owners, regardless of the exemptions provided by legislation and copyright laws. 
Furthermore, many state that the provisions hinder technological innovation and advancement, as well as limit competition due to copyright owners filing infringement suits against other companies that may have similar products, regardless of whether or not they are actually in violation of copyright laws and regulations.
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