DMCA: The Digital Millennium Copyright Act

Introduction

On October 12, 1998, Congress passed the Digital Millennium Copyright Act (DMCA). The law became effective in October 2000 and it has been incorporated into the Copyright Act (Title 17 of the U. S. Code). This landmark legislation updated U.S. copyright law to meet the demands of the Digital Age and to conform U.S. law to the requirements of the World Intellectual Property Organization (WIPO) and treaties that the U.S. signed in 1996.

Despite the work of libraries and other partners, dedicated to preserving the traditional balance in copyright law between protecting information and affording access to it, the DMCA tilts strongly in favor of copyright holders. In addition to creating new rules for digital materials, the DMCA mandates several important studies and reports to be conducted by the U.S. Copyright Office and sets the time frames for their completion.

Divided in to five "titles," the DMCA is a complex act that addresses a number of issues that are of concern to libraries. Among its many provision, the Act:

  • imposes rules prohibiting the circumvention of technological protection measures
  • sets limitations on copyright infringement liability for online service providers (OSPs)
  • expands an existing exemption for making copies of computer programs
  • provides a significant updating of the rules and procedures regarding archival preservation
  • mandates a study of distance education activities in networked environments
  • mandates a study of the effects of anti-circumvention protection rules on the "first sale" doctrine

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DMCA and Libraries

The following summarizes the key sections of the DMCA that relate to libraries. For more in-depth analysis of the DMCA and its impact on libraries:

Title I: New Prohibitions On Circumvention Of Protection Technologies:

  • Prohibits the "circumvention" of any effective "technological protection measure" (e.g., a password or form of encryption) used by a copyright holder to restrict access to its material
  • Prohibits the manufacture of any device, or the offering of any service, primarily designed to defeat an effective "technological protection measure"
  • Defers the effective date of these prohibitions for two years and 18 months, respectively
  • Requires that the Librarian of Congress issue a three-year waiver from the anti-circumvention prohibition when there is evidence that the new law adversely affects or may adversely affect "fair use" and other non-infringing uses of any class of work
  • Expressly states that many valuable activities based on the "fair use" doctrine (including reverse engineering, security testing, privacy protection and encryption research) will not constitute illegal "anti-circumvention"
  • Makes no change to the "fair use" doctrine or to other information user privileges and rights

Title II: Limitations On Online Service Provider Liability

  • Exempts any OSP or carrier of digital information (including libraries) from copyright liability because of the content of a transmission made by a user of the provider's or carrier's system (e.g., the user of a library computer system)
  • Establishes a mechanism for a provider to avoid copyright infringement liability due to the storage of infringing information on an OSP's own computer system, or the use of "information location tools" and hyperlinks, if the provider acts "expeditiously to remove or disable access to" infringing material identified in a formal notice by the copyright holder

Title IV: Digital Preservation

This section updates the current preservation provision of the Copyright Act (Sec. 108) to:

  • expressly permit authorized institutions to make up to three, digital preservation copies of an eligible copyrighted work
  • electronically "loan" those copies to other qualifying institutions
  • permit preservation, including by digital means, when the existing format in which the work has been stored becomes obsolete

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DMCA Mandates

  1. The DMCA directed the U.S. Copyright Office and the National Telecommunications and Information Administration (NTIA) to report to Congress on the effects of the "first sale" doctrine of the DMCA and the development of electronic commerce"
    1. The NTIA report was released its report in March 2001.
    2. The Copyright Office issued its report on Section 104 in August 2001.
  2. The DMCA directed the U.S. Copyright Office to consult with the appropriate parties and to make recommendations to Congress on how to promote distance education through digital technologies
    1. The Copyright Office issued its report, Copyright and Digital Distance Education, in May 1999.
  3. The DMCA delayed the effective date of the anti-circumvention provision (Section 1201) until October 23, 2000 to allow time for the Librarian of Congress to issue rules that would allow certain users to access certain "classes of works" if they needed to circumvent in order to make "non-infringing use" of the works. The Librarian issued the Rule on Oct. 28, 2000.

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The Legacy of DMCA

Five years after passage, the DMCA continues to be a controversial act with far-reaching impact that is supporting the attempts of copyright holders to control access to and downstream use of their content. The doctrine of "fair use" has never more been threatened than it is now. There have been several important court cases based on challenges to provisions in the DMCA and some new legislation is under consideration to redress the balance some believe has been undermined by this law. ALA has contributed "friends of the court" briefs in some of the legal cases (Universal v. Remeirdes, a.k.a. "the DVD case") and vigilantly tracks Congressional activities that bear on the abilities of libraries to provide service to their communities. CLICK ON: The "Copyright Court Cases" section in the left hand navigation tree for a link to this case.

The controversy surrounding the DMCA continues also in attempts to pass legislation that seeks to protect fair use in the digital environment and to extend the control of copyright owners. ALA carefully monitors all of these legislative activities.

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Other Information

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