October 28, 2011
13 years ago today, the Digital Millennium Copyright Act – arguably the most significant piece of copyright legislation in U.S. history – became law.
Easily passed in the House and Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA was primarily intended to implement two 1996 treaties of the World Intellectual Property Organization (WIPO).
These two treaties – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WPPT) – were themselves intended to update copyright protections in an environment of rapidly changing technology.
Both of these treaties are integrated into U.S. law via DMCA’s Title I: The WIPO Copyright and Performances and Phonograms Treaties Implementation Act.
The most significant (and controversial) portion of Title I is Section 103, which criminalizes circumvention of “Digital Rights Management” (DRM) systems.
DRM systems are often more commonly known as “copy protection,” and are most often found on DVDs and some downloaded mp3 audio files (for a more detailed discussion, see this post).
Because the anti-circumvention section criminalizes the act of bypassing protection technology rather than the act of infringing copyrights, many critics have called the section overbroad and claim that it prevents fair uses of copyrighted works.
“Fair use,” for those not familiar with the term, is a copyright exception that allows for the unlicensed use of copyrighted material in certain situations (i.e. commentary, criticism, news reporting, and educational purposes).
For example, let’s say that an individual wanted to digitally extract short video clips from a copyrighted DVD for the purpose of commentary or criticism.
This is considered fair use, and there wouldn’t be any violations of copyright law in this action.
However, thanks to the DMCA’s anti-circumvention section, the individual could face criminal penalties for bypassing the DVD’s copy protections to extract the video clips.
Although these specific concerns were addressed in the July 2010 exemptions issued by the U.S. Copyright Office, many more such fair use interferences remain disregarded.
Of course, it is very likely that this overbreadth was a direct result of the technology that was the motivating factor in the passage of the WIPO treaties to begin with.
Specifically, information technology’s mass shift to the digital format created fears (justifiably) in intellectual property holders that their lucrative copyrights (films, TV shows, music, etc) could be redistributed unauthorized at an unprecedented level.
Given this mindset, it’s easy to see how such a provision that focuses more on prevention of distribution of information rather than on increasing explicit copyright protections was created.
Despite the treaties being the motivation for the DMCA, there is actually much more to the law beyond Title I.
Of the remaining four titles, though, Title II, the Online Copyright Infringement Liability Limitation Act (OCILLA), is probably the most significant.
OCILLA creates a safe harbor for online service providers (OSP) by protecting them from copyright infringement liability.
There are still certain conditions that need to be met, but the law falls more in favor of OSPs than copyright holders in that copyright holders are, generally, the party responsible for monitoring Internet sites for infringing material.
The existence of OCILLA hasn’t prevented legal disputes between OSPs and copyright holders, though, one of the most prominent of which is Viacom’s $1 billion suit against YouTube (which has thus far been unsuccessful, but Viacom is still exploring further avenues for success).
The existence of such a large dispute as the Viacom case (and the many others like it) illustrates an important point about the future of the DMCA.
A website like YouTube was contemplated neither at the time of the treaties’ creation nor at the DMCA’s signing, and thus it presents factual and legal issues that aren’t explicitly addressed by the Act.
As such, as technologies continue to evolve, it is almost certain that we will see additional comprehensive reform bills such as the DMCA that, perhaps futilely, attempt to address these changes.