The Digital Millennium Copyright Act (The DMCA)

The Digital Millennium Copyright Act (abbreviated DMCA) is a United States law which implements two WIPO treaties that were signed in 1996. The DMCA went into effect the United States when it was signed by Bill Clinton in 1998. The biggest misconception about the DMCA is when people refer to it as a law that applies to everyone. Quite the contrary: because the DMCA is a U.S. law, individuals or companies outside the United States are not bound to follow the DMCA. They would instead be bound to follow the corresponding laws in their own country.

With that said, The Digital Millennium Copyright Act was an important piece of legislation. Titles III-V are more or less irrelevant to our purposes, but aspects of Titles I and primarily II are critical to the work we do at Web Defense Systems. These titles in the DMCA not only took steps to make America compliant with the two WIPO treaties, they modified and updated copyright law in the United States to suit the changing technology brought upon by the internet age in the following ways:

First, in Title I, the DMCA criminalized and increased the financial penalties against people or companies who violate certain copyright laws, particularly those who blatantly try to circumvent copyright prevention methods or remove copyright information. The DMCA made financial penalties not only criminal, but quite severe for these types of copyright infringement – up to $500,000 and five years in prison!

Second, in the all-important Title II, the DMCA also took controversial steps to benefit, in a roundabout way, a section of the business/content community that many would consider to be copyright infringers. Here’s how: the DMCA put into law the concept that online service providers would not be held liable for paying monetary damages in a copyright infringement lawsuit because of actions committed by their users, provided the online service provider meets the following qualifications, among others (online service providers could be websites, file sharing websites, hosting companies, routing companies, even companies that just provide internet access):

  1. The service provider cannot be uploading the content itself or sorting through the content by any means other than automated means;
  2. In the event that the service provider is notified of an infringement with a statement that is given under the penalty of perjury, the service provider must quickly remove or block access to the infringing content;
  3. The service provider must not impede the ability of copyright owners to locate their works within the service provider’s site / network, etc;
  4. The service provider must terminate the ability of repeat offenders from continually committing copyright infringement;
  5. In addition, the DMCA formed a procedure which allows copyright owners to obtain a subpoena demanding that the service provider disclose the identity of the infringer, so that the copyright owner can take legal action against that person or company.

Because of the DMCA, most internet service providers have a department or individual which will quickly remove content if a copyright owner instructs them to do so due to infringement. (In fact, service providers are required to list that department with the U.S. Copyright office.) This is the rationale behind why you may have heard the DMCA referred to so often: it ensured that companies like YouTube would not be held liable for copyright violations by their users, so long as companies like YouTube immediately remove the content when they are notified it violates the copyright holder’s copyright privileges.

An interesting caveat to this Title II of the DMCA is that a user who has posted the allegedly infringing content must be given a chance to respond to the online service provider with a “counter-notification,” which would state, also under penalty of perjury,that the user believes that their usage was actually legal, perhaps due to Fair Use. In such a case, the service provider would have two weeks to re-add the content, and a court case could result between the copyright holder and the person who posted the content, leaving the service provider not liable. This was exactly what happened in Lenz v. Universal Music Corporation in 2007, when Stephanie Lenz won a lawsuit against Universal for not considering Fair Use before demanding her video be removed from YouTube (YouTube being the online service provider). You can read more about Fair Use by clicking here. And you can read the entire DMCA by clicking here.

To discuss how Web Defense Systems can use our technologies and expertise to protect your content or intellectual property, please contact us at your convenience; we will be happy to speak with you.

Disclaimer: The purpose of our “Knowledge Base” documents is to explain the basics of the subject matter in question and to provide some rationale behind the actions that Web Defense Systems might take on behalf of our clients. We are not lawyers, and the preceding information should not be used in lieu of legal advice.