The Digital Millennium Copyright Act (DMCA) is an extension of U.S. copyright law clarifying rights as they apply to digital media. The federal government passed the act in 1998 to enforce the terms of two World Intellectual Property Organization treaties, although it also provides additional protections and liability limits not in those treaties. Despite having been in force for more than a decade, there's still a lot of confusion over what DMCA does and does not do.

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DMCA Provisions

The DMCA has five sections, called titles, dealing with a variety of issues, including responsibilities of the Copyright Office and copyright protections for certain foreign works. The provisions most associated with the DMCA, though, are those dealing with digital rights management (DRM) and online copyright liabilities.

Digital Rights Management

 

DRM refers to technological controls that limit access to digital content. Content providers add it to their works to prevent copyright infringement of digital materials.

DMCA makes it a crime to "crack" these controls to gain unauthorized access to a work-for example, a download you did not buy. It does not criminalize making a copy of a work you legitimately own, even if you have to override DRM to do it. However, it does criminalize the making or selling of devices that enable you to override those measures.

The DMCA also includes several additional cases when it is allowable to override DRM. Among them:

  • Educational use- Nonprofit libraries and educational organizations may circumvent access controls to find out if a work is one they want authorized access to.

  • Research and testingA person with a lawful copy may break into it to reverse engineer it and figure out how to make it work with other programs. Researchers may also crack controls to test encryption technologies and security measures.

  • PrivacyCircumvention is allowed if the work or its access controls can collect and/or distribute personally identifying data about the user.

A related concept, copyright management information (CMI), is information attached to a work identifying it, terms and conditions for its use and other related items. The DMCA makes it illegal to remove or change CMI and to distribute works with false CMI.

Limits on Liability for Online Copyright Infringement

 

The DMCA creates a "safe harbor" for online service providers whose users violate copyright and limits their liability for creating certain temporary copies of protected works. Chapter 5, section 512(k)(1)(B) of the U.S. Copyright law defines a service provider generally as "a provider of online services or network access, or the operator of facilities therefor," although some liability protections are available only to a narrower subset of providers.

Service providers who give subscribers the ability to post material online (website hosts, forum operators, etc.) may be protected from liability if they are unaware of the infringing material and have a policy of terminating accounts of repeat infringers. They must also promptly remove or otherwise block access to the infringing material after receiving a takedown notice. They will not be liable for the infringing material nor for taking it down due to a fraudulent or mistaken request.

The DMCA also clarifies that system caching-temporarily storing copies of material to reduce bandwidth usage and waiting time for loading the same information repeatedly-is not copyright infringement. Services that link to infringing material are not liable as long as they did not know the material was infringing and they respond to a takedown notice by removing the links or blocking access to the material.

The DMCA Takedown Notice

If someone is posting your copyrighted content without your permission, the DMCA provides a way for you to enlist service providers' help getting it removed.

You can send a DMCA takedown notice to any service provider associated with the infringing content, including the website host, ad networks like Google's AdSense, and search engines showing the content in their search results. Your notice should include:

  • Your name and address

  • The infringer's website and the exact location (URL) of the infringing content

  • The action you want taken, such as blocking access to the site or removing the infringing pages from a search engine's index

  • A statement that you believe the material used is not protected under fair use

  • A statement, under penalty of perjury, that the notice is accurate

The service provider must take prompt action against the infringing material to preserve its limited liability.

Counter notifications

 

The DMCA also provides protection against fraudulent or mistaken takedown notices. If your content has been removed and you know it is not infringing, you can respond with a counter notification, which should include:

  • Your name and address

  • Description of the material removed and its original location

  • A statement, under penalty of perjury, that the material was mistakenly removed

The service provider must restore the material within two weeks of receiving your notice, unless the alleged copyright owner has filed a lawsuit within 10 business days of the original notice.

If your material has been posted illegally online or you have been subject to a mistaken takedown notice, contact an attorney experienced with DMCA takedown notices.

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