Digital Millennium Copyright Act

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Digital Millennium Copyright Act
Great Seal of the United States (obverse).svg
Long titleTo amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes.
Acronyms (colloquial)DM, DMCA
Enacted bythe 105th United States Congress
EffectiveOctober 28, 1998
Citations
Public law Pub. L. 105-304
Statutes at Large 112  Stat.   2860
Codification
Acts amended Copyright Act of 1976
Titles amended5 (Government Organization and Employees); 17 (Copyrights); 28 (Judiciary and Judicial Procedure); 35 (Patents)
U.S.C. sections created17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001
U.S.C. sections amended17 U.S.C. §§ 101, 104, 104A, 108, 132, 114, 117, 701
Legislative history

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. [ citation needed ] In addition, the DMCA heightens the penalties for copyright infringement on the Internet. [1] [2] Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

Contents

The DMCA's principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries. This exemption was adopted by the European Union in the Electronic Commerce Directive 2000. The Information Society Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

Background and legislative history

The Digital Millennium Copyright Act (DMCA) had its basis as part of the United States' commitment to comply with two treaties passed by the World Intellectual Property Organization (WIPO) in December 1996 that dealt with the nature of copyright with modern information systems such as the Internet. The WIPO Copyright Treaty identified numerous electronic works as eligible for copyright protection, and stated that circumvention of technological measures used to secure electronic works was to be prohibited. The WIPO Performances and Phonograms Treaty worked to normalize the copyright protections for performed works as uniformly for member states as possible. [3]

The process of ratifying the treaties for the United States was the first major piece of copyright-related legislation since the Copyright Act of 1976, and led to numerous interested groups to express concerns for how the treaties should be implemented, including content producers and distributors, technology manufacturers, online service providers, researchers and academics, and consumer groups. Some groups urged for stronger copyright enforcement while others sought more relaxing of rules. As the bill was being formed in the Commerce Committee in the House of Representatives, the committee recognized that the final bill would be far more encompassing than just copyright reform but would be establishing key principles in the digital commerce marketplace. [3]

In evaluating the enforcement of the WIPO Copyright Treaty with its anti-circumvention provisions with U.S. copyright law, lawmakers recognized that traditionally copyright law did not generally account for the medium of the work, as it was generally impossible to make an exact copy of an analog work previously, and current law was only concerned with unlawful acts of copyright violations. Since digital technology could allow for infinite numbers of exact copies of works to be made, the lawmakers agreed they had to extend copyright to include limits on devices and services which could be used for circumvention in addition to acts of circumvention. [3] In establishing this, the lawmakers also recognized this would have a negative impact on fair use without exceptions, with electronic works potentially falling into the public domain but still locked beyond circumvention measures, but they also needed to balance the rights of copyright holders. The DMCA as passed contained some basic fair use allowance such as for limited reverse engineering and for security research. Lawmakers opted to create a rulemaking mechanism through the United States Copyright Office to review the state of copyrights and fair use to make limited classes of allowance for fair use which would be considered lawful means of using circumvention technology. [3]

Provisions

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, amends U.S. copyright law to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

The second portion (17 U.S.C. 1201) is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures"). The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations. Although section 1201(c) of the title stated that the section does not change the underlying substantive copyright infringement rights, remedies, or defenses, it did not make those defenses available in circumvention actions. The section does not include a fair use exemption from criminality nor a scienter requirement, so criminal liability could attach to even unintended circumvention for legitimate purposes. [4]

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. [5] OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent (a "notice and takedown" process). OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users' identity.

Title III: Computer Maintenance Competition Assurance Act

DMCA Title III modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer. It reversed the precedent set in MAI Systems Corp. v. Peak Computer, Inc. , 991 F.2d 511 (9th Cor. 1993).

Title IV: Miscellaneous Provisions

DMCA Title IV contains an assortment of provisions:

Title V: Vessel Hull Design Protection Act

DMCA Title V added sections 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs were not considered covered under copyright law because boats are useful articles whose form cannot be separated from their function as determined by the Supreme Court case Bonito Boats, Inc. v. Thunder Craft Boats, Inc. . [3] [6] [7]

Anti-circumvention exemptions

In addition to the safe harbors and exemptions the statute explicitly provides, 17 U.S.C. 1201(a)(1) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works.

The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle.

Previous exemptions

The Copyright Office approved two exemptions in 2000, four in 2003, six each in 2006 and 2010, five in 2012, and nine in 2015.

2000 rulemaking

In 2000, the first rulemaking, the Office exempted: [8]

2003 rulemaking

In 2003, the Office made the following rules: [9]

2006 rulemaking

In 2006, the Office made the following rules: [10]

2010 rulemaking

Rulemaking was scheduled to occur in 2009, but the final rule was not issued until the following year. The 2010 exemptions, issued in July 2010, are: [11]

2012 rulemaking

The 2012 exemptions, issued in November 2012, [12] are for:

2015 rulemaking

The 2015 exemptions, issued in October 2015, [13] are for:

2018 rulemaking

The 2018 exemptions, issued in October 2018, are for: [14]

2021 rulemaking

The 2021 exemptions, issued in October 2021, are for: [15]

2015 study

After much criticism (see below), on December 29, 2015, the Copyright Office initiated a study to assess the operation of section 1201 and the triennial rulemaking process. This is different from usual public comments on exemption proposals. It includes the role of the anti-trafficking provisions and permanent exemptions, and the requirements of the rulemaking itself. The Office has issued a Notice of Inquiry requesting public comment. [16]

Several comments were posted by individuals and organizations. [17] An individual recalls that the Copyright Clause has limitations. [18] Association of American Publishers et al. hold there is no need to amend the statute or to significantly alter the rulemaking. They are happy with the protection they are being granted, including anti-trafficking provisions, and talk of placing the cart before the horse, when they argue about requiring a proof of the mindset that consumers would have when utilizing circumvention tools before actual acts of circumvention occur. In their opinion, the meaning of Section 1201 is to extend, not merely duplicate, copyright holder's rights. [19] Society of American Archivists say they are not aware that the anti-trafficking provisions of section 1201(a)(2) and 1201(b) have had any impact in deterring copyright infringement. They do know, however, that the provisions have created an absurd, Catch-22 situation for any archives that sought to adhere to the letter of the law. [20] iFixit also talks of Catch-22 on stressing that since it is up to proponents to show that an exemption is relevant, they need to show that there's overwhelming market demand if only it were legal. [21] Rapid7 notice that DMCA adversely affects good faith security research by forbidding researchers from circumventing technological protection measures (TPMs) to analyze software for vulnerabilities. [22] Cyberlaw Clinic at Harvard Law School points out that the rulemaking is a complicated, ad hoc, and unduly burdensome process. [23] Professors Andrea M. Matwyshyn, Steven M. Bellovin, Matt Blaze, J. Alex Halderman, and Nadia Heninger, jointly advocated making the security research exemption granted in the 2015 Triennial Section 1201 Rulemaking permanent. [24]

The Learning Disabilities Association of America (LDA) commented that circumventing DRM restrictions to meet accessibility needs deserves a permanent exception. [25] Entertainment Software Association gives a vivid and detailed description of a flourishing market which is only possible because of DMCA. [26] They are deeply concerned about people with disabilities, but that concern is already being taken care of by the copyright holders, so that no permanent exception is needed. [27]

Comments have also been submitted by, among others, R Street Institute [28] American Association of Law Libraries, [29] Business Software Alliance, [30] Alliance of Automobile Manufacturers, [31] [32] Association of American Universities et al., [33] Copyright Alliance, [34] [35] Association for Computing Machinery U.S. Public Policy Council, [36] the Software and Information Industry Association, [37] [38] DVD Copy Control Association ("DVD CCA") et al., [39] Microsoft Corporation, [40] Association for Competitive Technology, [41] Public Knowledge, [42] [43] American Automobile Association. [44]

In June 2017, the Copyright Office published a report where it "shares the concern" that Section 1201 can affect activities unrelated to copyright infringement, but also expressed concerns over weakening "the right of copyright owners to exercise meaningful control over the terms of access to their works online", which they believe is "essential to the development of the digital marketplace for creative content". [45] However, with respect to the question of whether the security research exemption granted in the 2015 Triennial cycle should be made permanent in some form, the Office recommended "that Congress consider expanding the reach of this exemption, easing the strict authorization requirement for researchers and restrictions on the use of information generated from the research, and abandoning or clarifying the multifactor test," stating that "it continues to believe that the exemption adopted in 2015 can be a useful starting point, and notes that most of the security researchers who petitioned for that exemption ... agree." [24]

Case law

Anti-circumvention

The anti-circumvention provisions in Section 1201 of the DMCA have seen some challenges in the courts but which have generally been upheld. While initially the challenges were focused on clear applications to software-based access control products, some cases considered how the DMCA also extended to hardware-based access controls.

Software-based case law

Universal City Studios, Inc. v. Reimerdes/Universal City Studios, Inc. v. Corley – Eight movie studios had sued Eric Corley, Shawn Reimerdes, and Roman Kazan, editors of 2600: The Hacker Quarterly , for publishing the code of DeCSS, an algorithm designed to bypass the Content Scramble System (CSS) used to encrypt DVD content. The studios argued that the code was an anti-circumvention device as defined by the DMCA. While Reimerdes and Kazan entered into consent decrees and were subsequently dropped from the suit, Corley continued the case. He argued that DeCSS, as computer code, was protected as free speech, and the DMCA allowed users to make copies of media they legally owned. Both the District Court and the Second Circuit rejected Corley's arguments. While the court agreed that a computer program qualifies as protected speech, the distribution of anti-circumvention devices was not considered a fair use option by Section 1201, and thus DeCSS was not protected by First Amendment rights. [46]

United States v. Elcom Ltd. – Moscow-based Elcom had developed software that was able to remove protections on an Adobe Acrobat PDF file, such as those used in ebook distribution. Adobe requested the U.S. Department of Justice take action against the company for violating the DMCA. Elcom argued in court that the DMCA was unconstitutionally vague and allowed for circumvention of use controls for purposes of fair use. The company also claimed that the act violated the First Amendment by placing too much burden on those seeking to use protected works for fair use. The initial ruling at the U.S. District Court for the Northern District of California rejected both arguments on the basis of Corley. The ruling established that the DMCA was not unconstitutional, and that while it did place a burden on users accessing works for fair use, the DMCA did not outright restrict fair use. In the case of the ebook example, the ruling observed that the user may have to type a quote from the ebook rather than copy and paste from the unprotected version. [47]

321 Studios v. Metro Goldwyn Mayer Studios, Inc. – 321 Studios made copies that allowed users to copy DVDs, including those with CSS copy protection, to another DVD or to a CD-ROM. The company sought declaratory judgment from MGM Studios that their software did not violate the DMCA, or sought to have the DMCA ruled unconstitutional. The case, heard in the United States District Court for the Northern District of California, ruled against 321 Studios on both arguments. The court ruled that 321 Studios' software was not protected speech and violated the DMCA. Additionally, they argued that the issues pertaining to the constitutionality of the DMCA were answered by prior cases, as case law from Corley and Elcom effectively established that the DMCA could not be challenged on the basis of constitutionality. [48]

Durable goods case law

Chamberlain Group, Inc. v. Skylink Technologies, Inc. – Chamberlain manufactured garage door openers and accessories, while Skylink created universal remotes that worked with a variety of door openers. Chamberlain developed a security protocol for its remotes that matched the remote to the door via software-based rolling code; this was intended to prevent unauthorized opening. Skylink utilized a resynchronization feature of the Chamberlain security software to create a universal remote that worked with the Chamberlain openers. Chamberlain sued Skylink, arguing that the rolling code was effectively an access control device, and Skylink violated the DMCA. Both the United States District Court for the Northern District of Illinois and the United States Court of Appeals for the Federal Circuit ruled in favor of Skylink that there was no DMCA violation. The courts ruled the DMCA did not create a new property right, and thus consumers that owned Chamberlain's product had a right to circumvent any restrictions, since this was typical practice on the market. They also pointed out that customers purchasing a Chamberlain garage door opener did not sign an end user license agreement waiving those rights. [49]

Lexmark International, Inc. v. Static Control Components, Inc. – Lexmark had developed a lock-out mechanism for its inkjet printers that would prevent use of any third party ink cartridges. The mechanism used a program in the printer along with an electronic chip on the cartridge to validate the authenticity of the product. Static Control Components reverse engineered the chip using the program from the printer and were able to make their own ink cartridges compatible with Lexmark printers. Lexmark sued, claiming a DMCA violation, and won at the District Court. However, the case was overturned shortly after by the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit acknowledged that Lexmark's programs to manage the lockout were copyrightable and thus eligible for protections under the DMCA. However, the appeals court pointed out that Lexmark failed to include an anti-circumvention device that "effectively controls access" to the printer lockout program. [48]

Linking to infringing content

Case law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in narrowly prescribed circumstances. It is considered a violation when the owner of a website has been issued an injunction against posting infringing material on their website, and then links to the same material to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent digital rights management devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material. [50]

Edelman v. N2H2

In July 2002, American Civil Liberties Union filed a lawsuit on the behalf of Benjamin Edelman, a computer researcher at Berkman Center for Internet and Society, seeking a declaratory judgment to affirm his first amendment rights when reverse engineering the censorware product of defendant N2H2 in case he intended to publish the finding. N2H2 filed a motion to dismiss, which the court granted on the basis that Edelman had not finished reverse engneeering, and the court did not make advisory opinions. [51] [ citation needed ]

RealNetworks, Inc. v. DVD Copy Control Association, Inc.

In August 2009, the DVD Copy Control Association won a lawsuit against RealNetworks for violating copyright law in selling its RealDVD software, allowing users to copy DVDs and store them on a harddrive. The DVD Copy Control Association claimed that Real violated the DMCA by manufacturing and trafficking a tool that circumvented anti-piracy measures ARccOS Protection and RipGuard, as well as breaking Real's licensing agreement with the Content Scrambling System. [52]

Viacom Inc. v. YouTube, Google Inc.

On March 13, 2007, Viacom filed a lawsuit against YouTube and its corporate parent Google for copyright infringement seeking more than $1 billion in damages. The complaint was filed in the U.S. District Court for the Southern District of New York.

Viacom claims the popular video-sharing site was engaging in "massive intentional copyright infringement" for making available a contended 160,000 unauthorized clips of Viacom's entertainment programming. Google relied on the 1998 Digital Millennium Copyright Act's "safe harbor" provision to shield them from liability. [53]

On June 23, 2010, U.S. District Judge Louis Stanton granted summary judgment in favor of YouTube. [54] The court held that YouTube is protected by the safe harbor of the DMCA. Viacom appealed to the U.S. Court of Appeals for the Second Circuit. [55]

On April 5, 2012, the federal Second Circuit Court of Appeals vacated Judge Louis Stanton's ruling, and instead ruled that Viacom had presented enough evidence against YouTube to warrant a trial, and the case should not have been thrown out in summary judgment. The court did uphold the ruling that YouTube could not be held liable based on "general knowledge" that users on its site were infringing copyright. The case was sent back to the District Court in New York, [56] and on April 18, 2013, Judge Stanton issued another order granting summary judgment in favor of YouTube. Before it was sent back to the Court of Appeals, a settlement was reached; no money changed hands.

IO Group, Inc. v. Veoh Networks, Inc.

On June 23, 2006, IO Group, Inc. filed a complaint against Veoh Networks, Inc. in the U.S. District Court for California's Northern District. [57]

IO Group alleged that Veoh was responsible for copyright infringement by allowing videos owned by IO Group to be accessed through Veoh's online service without permission over 40,000 times between the dates June 1 and June 22. [58]

Veoh is a Flash video site relying on user contributed content. IO Group argued that since Veoh transcoded user uploaded videos to Flash format it became a direct infringer and the materials were under their direct control, thereby disqualifying them for DMCA safe harbor protection.

The ruling judge disagreed with the argument, stating that

Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the thirdparty software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users.

The Court has granted the Veoh's motion for summary judgment, on the basis of the DMCA, holding that the defendant's video-sharing web site complied and was entitled to the protection of the statute's "safe harbor" provision. [59] Even though Veoh won the court case, it blamed the litigation as one of the causes of its preparing to file Chapter 7 bankruptcy and its subsequent sale to Qlipso. [60] [61]

Vernor v. Autodesk, Inc.

After numerous DMCA takedown notices in response to his eBay listings, Timothy S. Vernor sued Autodesk in August 2007, alleging that Autodesk abused the DMCA and disrupted his right to sell used software he bought at a garage sale. [62] In May 2008, a federal district judge in Washington State Autodesk's authorized that the software's license agreement preempted the seller from his rights under the first-sale doctrine. [63] In September 2010, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that "a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly authorized the user's ability to transfer the software; and (3) imposes notable use authorizations." [64]

Lenz v. Universal Music Corp.

In 2007, Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania made a home video of her 13-month-old son dancing to the Prince song "Let's Go Crazy" and posted a 29-second video on the video-sharing site YouTube. Four months after the video was originally uploaded, Universal Music Group, which owned the copyrights to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act.

Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks—not two weeks, as required by the Digital Millennium Copyright Act—to see whether Universal planned to sue Lenz for infringement. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song. [65]

In August 2008, U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material.

On February 25, 2010, Judge Fogel issued a ruling rejecting several of Universal's affirmative defenses, including the defense that Lenz suffered no damages. [66]

In 2015, the court ultimately upheld the finding that Universal was liable under 17 USC 512(f) (the DMCA's bad faith notice and takedown provision) for failing to consider fair use before sending its initial takedown notice.

Flava Works Inc. v. Gunter

In the case of Flava Works Inc. v. Gunter the court denied the defendant safe harbor protection under DMCA 17 U.S.C.   § 512 . The district court found that the defendant had knowledge of its users' infringing activity and also failed to prevent future infringing activity. As such the plaintiff's motion for preliminary injunction was granted. [67] On appeal, however, the Seventh Circuit vacated the injunction, citing the standard set in eBay Inc. v. MercExchange, L.L.C., which states that courts should not rely on categorical rules as a standard for injunction. [68]

Ouellette v. Viacom International Inc.

In this case of Ouellette v. Viacom International Inc., the court denied plaintiff's attempt to find liability for YouTube and Myspace's takedowns of the plaintiff's homemade videos. Despite potential fair use claims, the court found it impossible to use the DMCA takedown provisions as a foundation for liability. The court found that the safe harbor provision serves "to limit the liability of internet service providers, not to create liability that could not otherwise be imposed under existing law independent of the DMCA." [69]

Sony v. George Hotz

In January 2011, Sony Computer Entertainment sued George Hotz over violating the Section 1201 of the Digital Millennium Copyright Act as well as the Federal Fraud and Abuse Act due to facilitating consumers to jailbreak their PlayStation 3 consoles. [70] Hotz argued that because he had purchased the product, he had the right to do with it as he pleased. After three months, Sony and Hotz decided to settle out of court. This also included an injunction against George Hotz, barring him from hacking any more Sony products. [71] [72]

Automattic, Inc. and Oliver Hotham v. Nick Steiner

In 2013, Oliver Hotham wrote an article on WordPress (owned by Automattic, Inc.) critical of Straight Pride UK that included material from a press release sent to him by Straight Pride UK's press officer, Nick Steiner. Steiner sent WordPress a DMCA takedown notice claiming that Hotham's article infringed their copyright. WordPress and Hotham sued in a federal District Court in California, under §512(f) of the DMCA, claiming that the takedown notice was fraudulent, and that the takedown cost the plaintiffs time, lost work and attorneys' fees. In 2015, the court issued a default judgment in favor of WordPress and Hotham in the amount of $25,084. [73]

Criticisms

Abuse of takedown notice

Google asserted misuse of the DMCA in a filing concerning New Zealand's copyright act, [74] [75] quoting results from a 2005 study by California academics Laura Quilter and Jennifer Urban based on data from the Chilling Effects clearinghouse. [76] Takedown notices targeting a competing business made up over half (57%) of the notices Google has received, the company said, and more than one-third (37%) "were not valid copyright claims." [77]

Currently, there are three main abuses of the DMCA. First, fair use has been a legal gray area, and subject to opposing interpretations. This has caused inequity in the treatment of individual cases. Second, the DMCA has often been invoked overbearingly, favoring larger copyright holders over smaller ones. This has caused accidental takedowns of legitimate content, such as a record company accidentally removing a music video from their own artist. Third, the lack of consequences for perjury in claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement. This has been used by businesses to censor competition. [78]

The use of DMCA-enabled takedown notices has been raised for a number of services that allow users to provide content. Early concerns were focused on peer-to-peer file sharing services such as BitTorrent. Such services grew after Napster was sued by several music industry groups in A&M Records, Inc. v. Napster, Inc. (2001) which ruled that Napster was liable for enabling copyright infringement under the DMCA since they maintained central servers that tracked file sharing; by switching to the peer-to-peer model, these new services avoided this possible legality. However, some still saw legal challenges, such as MGM Studios, Inc. v. Grokster, Ltd. (2005) based on the fact they were operated commercially and promoted the ability to share copyrighted works. Non-commercial and open-source peer-to-peer services were able to survive from these case laws, leading entertainment groups to deploy software on the services to track downloads, [79] and subsequently attempted to serve takedown notices and sue users on the services for copyright violations under the DMCA since around 2003. [80] However, many of these methods were imprecise, leading to a number of false accusations at users. [81]

Project Brazen, an investigative outlet run by Pulitzer Prize-winning journalist Bradley Hope, complained that abusing the DCMA was "how fraudsters curate their online reputation." [82] They stated that, shortly after publishing a story on 10 October 2023 reporting that Indian businessman Gaurav Srivastava was fraudlently representing himself as an agent of the Central Intelligence Agency (the Gaurav Srivastava Fake Spy Scam), a fake blog was created on blogging site Tumblr that republished the content of their story and backdated it to 8 October 2023, two days before their article came out. Following a copyright infringement complaint filed on legal archive Lumen and without checking the veracity of the source, Google delisted the Project Brazen article. [82]

Abuse of the anti-circumvention provision

In 2015 Volkswagen abused the DMCA to hide their vehicles' emissions cheat. [83] It has been suggested that had the DMCA not prevented access to the software "... a researcher with legal access to Volkswagen's software could have discovered the code that changed how the cars behave in testing ..." [84]

Effect on analog video equipment

Analog Copy Protection (ACP), the encryption technology created by Rovi Corporation (formerly Macrovision, now TiVo), is designed to thwart users' attempts to reproduce content via analog cables. When a DVD is played through an analog video cable and recorded using a VCR, Rovi's ACP technology will distort the copy partially or completely. [85]

The technology works by adding additional lines to the video signal. In the NTSC video standard, blank lines (vertical blanking intervals) that the user cannot see are used for functions like closed captioning. Rovi Corporation uses these blank lines to implement its ACP technology. [86]

The implementation of ACP has been ill-regarded by some video enthusiasts. Many claim that the technology has led to signal issues with VCRs and analog video equipment. Some VCRs misread the encryption used to prevent copying, distorting the video image regardless of whether the recording is original or a copy.

The DMCA has been criticized for forcing all producers of analog video equipment to support the proprietary copy protection technology of Rovi Corporation, a commercial firm. The producers of video equipment are forced by law to support and implement the corporation's proprietary technology. This benefits Rovi Corporation financially, whereas those forced to implement it receive neither profit nor compensation. [87] [88]

Additionally, some criticize the implementation of ACP as a violation of their fair use rights. A TV-streaming product called the Slingbox uses analog signals to convey video from television to a mobile device. However, the encryption used by ACP blocks analog transmission, rendering the Slingbox unusable. Additionally ACP blocks the use of recording for educational purposes. On one or more accounts, students have not been able to cite and record cable sources properly due to ACP restrictions. [89]

Effect on research

The DMCA has affected the worldwide cryptography research community, since an argument can be made that any cryptanalytic research violates, or might violate, the DMCA. The arrest of Russian programmer Dmitry Sklyarov in 2001, for alleged infringement of the DMCA, was a highly publicized example of the law's use to prevent or penalize development of anti-DRM measures. [90] While working for ElcomSoft in Russia, he developed The Advanced eBook Processor, a software application allowing users to strip usage restriction information from restricted e-books, an activity legal in both Russia and the United States. [91] Paradoxically, under the DMCA, it is not legal in the United States to provide such a tool. Sklyarov was arrested in the United States after presenting a speech at DEF CON and subsequently spent nearly a month in jail. [92] The DMCA has also been cited as chilling to legitimate users, such as students of cryptanalysis (including, in a well-known instance, Professor Edward Felten and students at Princeton), [93] and security consultants such as Niels Ferguson, who has declined to publish information about vulnerabilities he discovered in an Intel secure-computing scheme because of his concern about being arrested under the DMCA when he travels to the U.S. [94]

Effect on innovation and competition

In at least one court case, the DMCA has been used by open source software projects to defend against conversion of software (i.e., license violations) that involved removal of copyright notices. [95]

Jonathan Bailey of Plagiarism Today argued that the DMCA has left Kindle Direct Publishing (an Amazon subsidiary) with no incentive to find new innovations for vetting submitted books for plagiarism or copyright theft before allowing them to be published. According to Bailey, "Amazon doesn't do much to vet the books it publishes. Plagiarism isn't even mentioned in its KDP help files. What this means is that it's trivial to publish almost anything you want regardless of the quality of the work or, in these cases, how original it is. In fact, many complain that Amazon fails to vet works for even simple issues such as formatting and layout. Though Amazon will, sometimes, remove works that violates their terms of service after they get complaints, they're happy to sell the books and reap the profits until they get such a notice. And, from Amazon's perspective, this is completely legal. They are protected by the Digital Millennium Copyright Act (DMCA) as well as other laws, in particular Section 230 of the Communications Decency Act, that basically mean they are under no obligation to vet or check the works they publish. They are legally free to produce and sell books, physical and digital, regardless of whether they are plagiarized, copyright infringing or otherwise illegal." [96]

Legislative reform

There have been several Congressional efforts to modify the Act. The Unlocking Technology Act of 2013 was introduced to attempt to exempt non-infringing uses from the anti-circumvention clause. [97] However, the bill was not passed by Congress. In 2014, the Unlocking Consumer Choice and Wireless Competition Act was passed, granting a specific exemption for unlocking cell phones, without affecting the other provisions of the DMCA.

Bills in 2015 included the Unlocking Technology Act of 2015, [98] and the Breaking Down Barriers to Innovation Act of 2015. [99] Republicans are considering legislation as well, as it becomes clear that Section 1201 is impeding the country's security. Facing escalating numbers of cyberthreats, cybersecurity researchers petitioned to conduct research to keep pace with evolving cybersecurity risks and vulnerabilities, stating: "Without such an exemption, security risks will lie unaddressed and the public will be substantially less safe." [100] The bills are intended to address the fact that section 1201 prevents circumvention even when doing so is not copyright infringement. In addition, the section requires exemption proponents to bear the burden of proof every time their exemption comes up for triennial review, instead of there being a presumption of renewal for an exemption whose importance was previously proven.

Rick Boucher, a congressman from Virginia, led previous efforts by introducing the Digital Media Consumers' Rights Act (DMCRA).

A prominent bill related to the DMCA is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), known in early drafts as the Security Systems and Standards Certification Act (SSSCA). This bill, if it had passed, would have dealt with the devices used to access digital content and would have been even more restrictive than the DMCA.[ vague ]

Senator Thom Tillis introduced a draft revision of the DMCA in December 2020. A fundamental change in his language would be to support "notice and stay down" for service providers, requiring them to take measures to prevent material that has already been determined to be violating copyright to be re-uploaded by users. While the draft was praised by the entertainment industry, free speech advocacy groups feared the language would require services to employ automatic filtering and would further limit freedom of expression. [101]

Opposition

On the fifth anniversary of the DMCA, and several times afterwards, the Electronic Frontier Foundation documented harmful consequences of the anti-circumvention provisions. [102] They document that the DMCA:

  1. Stifles free expression, such as in its use against Russian programmer Dmitry Sklyarov, Princeton Professor Edward Felten, and journalists;
  2. Jeopardizes fair use;
  3. Impedes competition, such as blocking aftermarket competition in toner cartridges, garage door openers, and enforcing walled gardens around the iPod; [103] and
  4. Interferes with computer intrusion laws. [104]

In July 2016, the Electronic Frontier Foundation sued the US government in Green v. Department of Justice alleging that Section 1201 violates the First Amendment. [105]

See also

Proposed international law
DMCA anti-circumvention cases
DMCA notice-and-takedown issues
Economic concepts
Related US laws
Proposed US legislation
Shelved US Legislation
Related international law

Related Research Articles

The Digital Media Consumers' Rights Act (DMCRA) was a proposed law in the United States that directly challenges portions of the Digital Millennium Copyright Act, and would intensify Federal Trade Commission efforts to mandate proper labeling for copy-protected CDs to ensure consumer protection from deceptive labeling practices. It would also allow manufacturers to innovate in hardware designs and allow consumers to treat CDs as they have historically been able to treat them.

Limitations on exclusive rights: Computer programs is the title of the current form of section 117 of the U.S. Copyright Act. In the United States copyright law, provides users with certain adaptation rights for computer software that they own.

Ripping is the extraction of digital content from a container, such as a CD, onto a new digital location. Originally, the term meant to rip music from Commodore 64 games. Later, the term was applied to ripping WAV or MP3 files from digital audio CDs, and after that to the extraction of contents from any storage media, including DVD and Blu-ray discs, as well as the extraction of video game sprites.

Software copyright is the application of copyright in law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to software.

Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow. The requirement for anti-circumvention laws was globalized in 1996 with the creation of the World Intellectual Property Organization's Copyright Treaty.

<i>Chamberlain Group, Inc. v. Skylink Technologies, Inc.</i> American legal case concerning the DMCA

The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 is a legal case heard by the United States Court of Appeals for the Federal Circuit concerning the anti-trafficking provision of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201(a)(2), in the context of two competing universal garage door opener companies. It discusses the statutory structure and legislative history of the DMCA to help clarify the intent of the anti-circumvention provisions and decide who holds the burden of proof. It expresses that the statute creates a cause of action for liability and does not create a property right, and holds that as Chamberlain had alleged that Skylink was in violation of the anti-trafficking provision, it had the burden to prove and failed to show that access was unauthorized and its rights were infringed under the Copyright Act. As Chamberlain incorrectly argued that Skylink had the burden of proof and failed to prove their claim, the court upheld summary judgment in favor of Skylink.

Stream ripping is the process of saving data streams to a file. The process is sometimes referred to as destreaming.

<span class="mw-page-title-main">FAIR USE Act</span>

The "Freedom and Innovation Revitalizing United States Entrepreneurship Act of 2007" was a proposed United States copyright law that would have amended Title 17 of the U.S. Code, including portions of the Digital Millennium Copyright Act (DMCA) to "promote innovation, to encourage the introduction of new technology, to enhance library preservation efforts, and to protect the fair use rights of consumers, and for other purposes." The bill would prevent courts from holding companies financially liable for copyright infringement stemming from the use of their hardware or software, and proposes six permanent circumvention exemptions to the DMCA.

The WIPO Copyright and Performances and Phonograms Treaties Implementation Act, is a part of the Digital Millennium Copyright Act (DMCA), a 1998 U.S. law. It has two major portions, Section 102, which implements the requirements of the WIPO Copyright Treaty, and Section 103, which arguably provides additional protection against the circumvention of copy prevention systems and prohibits the removal of copyright management information.

iOS jailbreaking is the use of a privilege escalation exploit to remove software restrictions imposed by Apple on devices running iOS and iOS-based operating systems. It is typically done through a series of kernel patches. A jailbroken device typically permits root access within the operating system and provides the right to install software unavailable through the App Store. Different devices and versions are exploited with a variety of tools. Apple views jailbreaking as a violation of the end-user license agreement and strongly cautions device owners not to try to achieve root access through the exploitation of vulnerabilities.

Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to copyright infringement, as well as for libel and other illegal content. In United States and European Union law, notice and takedown is mandated as part of limited liability, or safe harbour, provisions for online hosts. As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.

<i>MDY Industries, LLC v. Blizzard Entertainment, Inc.</i> Court case in the United States

MDY Industries, LLC v. Blizzard Entertainment, Inc and Vivendi Games, Inc., 629 F.3d 928, is a case decided by the United States Court of Appeals for the Ninth Circuit. At the district court level, MDY had been found liable under theories of copyright and tort law for selling software that contributed to the breach of Blizzard's End User License Agreement (EULA) and Terms of Use (ToU) governing the World of Warcraft video game software.
The court's ruling was appealed to the United States Court of Appeals for the Ninth Circuit, which reversed the district court in part, upheld in part, and remanded for further proceedings. The Court of Appeals ruled that for a software licensee's violation of a contract to constitute copyright infringement, there must be a nexus between the license condition and the licensor’s exclusive rights of copyright. However, the court also ruled, contrary to Chamberlain v. Skylink, that a finding of circumvention under the Digital Millennium Copyright Act does not require a nexus between circumvention and actual copyright infringement.

<i>IO Group, Inc. v. Veoh Networks, Inc.</i> 2008 US District Court case

IO Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, is an American legal case involving an internet television network named Veoh that allowed users of its site to view streaming media of various adult entertainment producer IO Group's films. The United States District Court for the Northern District of California ruled that Veoh qualified for the safe harbors provided by the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512 (2006). According to commentators, this case could foreshadow the resolution of Viacom v. YouTube.

Rooting is the process by which users of Android devices can attain privileged control over various subsystems of the device, usually smartphones and tablets. Because Android is based on a modified version of the Linux kernel, rooting an Android device gives similar access to administrative (superuser) permissions as on Linux or any other Unix-like operating system such as FreeBSD or macOS.

<i>321 Studios v. Metro Goldwyn Mayer Studios, Inc.</i>

321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, is a district court case brought by 321 Studios seeking declaratory judgment from the court that their DVD ripping software, i.e. DVD Copy Plus and DVD X Copy do not violate the provisions of the Digital Millennium Copyright Act ("DMCA"), or, in the alternative, that the DMCA is unconstitutional because Congress exceeded its enumerated powers, these provisions are unconstitutionally vague and/or violate the First Amendment.

<span class="mw-page-title-main">Critical Commons</span>

Critical Commons is an online repository of user-generated media. The archive is a project of the Media Arts and Practice division of the USC School of Cinematic Arts. The project supports the fair use of copyrighted media by educators.

<i>UMG Recordings, Inc. v. Shelter Capital Partners LLC</i> United States Court of Appeals for the Ninth Circuit case

UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 No. 09-55902, was a United States Court of Appeals for the Ninth Circuit case in which UMG sued video-sharing website Veoh, alleging that Veoh committed copyright infringement by hosting user-uploaded videos copyrighted by UMG. The Ninth Circuit upheld the decision of the United States District Court for the Central District of California that Veoh is protected under the Digital Millennium Copyright Act's safe harbor provisions. It was established that service providers are "entitled to broad protection against copyright infringement liability so long as they diligently remove infringing material upon notice of infringement".

<span class="mw-page-title-main">Unlocking Consumer Choice and Wireless Competition Act</span>

The Unlocking Consumer Choice and Wireless Competition Act is a United States public law that repeals a rulemaking determination by the United States Copyright Office that left it illegal for people to unlock their cellphones.

youtube-dl is a free and open source software tool for downloading video and audio from YouTube and over 1,000 other video hosting websites. It is released under the Unlicense software license.

Green v. Department of Justice is a pending lawsuit at the United States District Court for the District of Columbia filed to test the constitutionality of the anti-circumvention provisions enacted in the 1998 Digital Millennium Copyright Act (DMCA). The lawsuit argues that, as passed, the anti-circumvention provisions of the DMCA prevent legitimate speech under the First Amendment to the United States Constitution.

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