Copyright: Digital Millennium Copyright Act

From Internet Law Treatise

The Digital Millennium Copyright Act (DMCA) is a controversial United States copyright law. Passed on May 14, 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 US Code to extend the reach of copyright, while limiting the liability of Online Service Providers from copyright infringement by their users.

Table of contents
1 Online Service Provider Safe Harbors

1.1 Service Provider
1.2 Covered Activities
1.3 Prerequisites for All DMCA Safe Harbors

1.3.1 Prerequisites for some safe harbors

1.4 Innocent Service Providers
1.5 Steps to Take upon Notice of Infringement
1.6 DMCA Misuse
1.7 DMCA Subpoenas
1.8 Case Law Interpreting the DMCA Safe Harbor Provisions

2 Anti-Circumvention and Anti-Trafficking Provisions

2.1 Scope of Circumvention Prohibition
2.2 Copyright Office Triennial DMCA Rule-Making

2.2.1 2000-2003 Exemptions
2.2.2 2003-2006 Exemptions
2.2.3 Additional resources regarding DMCA triennial rulemaking:

2.3 Statutory Exceptions
2.4 Anti-Circumvention Cases

3 Webcasting
4 Vessel Hull Design Protection
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Online Service Provider Safe Harbors

By taking certain steps required by the DMCA, a service provider may avoid monetary damages under U.S. copyright law arising from activities covered by the law. 17 U.S.C. § 512 (http://www.copyright.gov/title17/92chap5.html#512). In addition, the DMCA limits the availability of injunctive relief against the service provider for copyright infringement. The DMCA also eliminates liability for a service provider who in good faith removes or disables access to material that is claimed to be infringing or that is apparently infringing from the facts and circumstances.

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Service Provider

The DMCA broadly defines “service provider” beyond just ISPs and Internet backbone providers. 17 U.S.C. § 512(k)(1).

For three of the four activities covered by the DMCA (sections 512(b)-(d)), “service provider” means “a provider of online services or network access, or the operator of facilities therefor.” Id. at § 512(k)(1)(B) The language of the definition encompasses businesses that operate websites or other Internet services or facilities and likely also company LANs and intranets.

  1. Corbis v. Amazon.com, 351 F.Supp.2d 1090 (W.D. Wash. 2004) (holding that Amazon meets DMCA definition of service provider).
  2. Hendrickson v. Amazon.com, 298 F.Supp.2d 914, 915 (C.D.Cal.2003) (holding that Amazon meets the DMCA's definition of a service provider).
  3. In Re Aimster Copyright Litig., 252 F. Supp. 2d 634 (N.D. Ill. 2002), (“A plain reading of [17 U.S.C. § 512(k)] reveals that ‘service provider’ is defined so broadly that we have trouble imagining the existence of an online service that would not fall under the definitions….”), aff'd, 334 F.3d 643, 655 (7th Cir. 2003) (affirming district court ruling that Aimster is an OSP).
  4. See Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1087 (C.D. Cal. 2001) (acknowledging the broad definition of a service provider and stating that eBay “clearly” falls within this definition).

For the 512(a) safe harbor, however, the statute applies a narrower definition of "service provider," defining the term to mean "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." 17 U.S.C. 512(k)(1)(A).

  1. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1175 (C.D. Cal. 2002) (on Cybernet’s summary judgment motion, the court assumed that Cybernet was a service provider covered by the DMCA, but commented that it might be a “close question” whether Cybernet actually qualified because it did not host or transmit any infringing material).

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Covered Activities

The DMCA safe harbor provisions cover four common types of service provider activities:

  1. Transitory Digital Network Communications. Sending communications initiated by others through a service provider’s system, where the service provider does not alter the content (for example, providing Internet backbone connections or routing digital transmissions through servers). 17 U.S.C. § 512(a).
    1. Ellison v. Robertson, 357 F. 3d 1072 (9th Cir. 2004). Holding that AOL’s storage of infringing material on its Usenet servers for fourteen days in order to provide Usenet access to its users qualifies the material as “transitory digital network communications.”
    2. A&M Records v. Napster, 2000 WL 573136, 54 U.S.P.Q. 2d. 1746 (N.D. Cal. 2000) (holding that Napster does not fall within 512(a) because it does not transmit, route or provide connections through its system because no infringing copies passed through Napster's servers).
    3. In Re Aimster Copyright Litig., 252 F. Supp. 2d 634, 659 (N.D. Ill. 2002) (Aimster does not qualify for 512(a) because infringing material is not routed or transmitted through Aimster's system), aff'd on other grounds, 334 F.3d 643 (7th Cir. 2003)

  2. System Caching. Temporarily storing online material (such as a website or web page) on a service provider’s system. The statute defines "caching" narrowly to include only situations where a user has first requested the material in question, and the service provider subsequently holds a copy to serve to subsequent users. 17 U.S.C. § 512(b).
  3. Providing Storage Space on a System or Network. Storing, at the direction of a user, material that resides on a service provider’s system or network (such as bulletin boards, chat rooms, and hosted website). 17 U.S.C. § 512(c). This applies to situations where a plaintiff seeks to hold a service provider liable for: (1) infringing material stored on the service provider’s website, or (2) infringing activity using the material on the service provider’s system.
    1. Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2001). The court found that the sale of infringing items through eBay’s website constituted “infringing ‘activity using the material on the [service provider’s computer] system,’” and held eBay immune pursuant to the safe harbor. Id. at 1088.
  4. Providing “Information Location Tools.” Referring or linking users to an online location containing infringing material or infringing activity via search engines, links, directories and similar information location tools. 17 U.S.C. § 512(d).
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Prerequisites for All DMCA Safe Harbors

The following are prerequisites for all four of the DMCA safe harbors (512(a), (b), (c) and (d)):

  1. Adopt, Inform Users of, and Reasonably Implement a Policy of Terminating “Repeat Infringers”. Section 512(i)(1)(A) states that the DMCA safe harbors will only apply to a service provider if it "has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders ... who are repeat infringers."
    • Perfect 10, Inc. v. CCBill LLC, No. 04-57143, 04-57207 (9th Cir. March 29, 2007) (a "reasonable" DMCA policy requires three things: a working notification system, a procedure for dealing with DMCA complaints, and systems that allow copyright holders to collect the information needed to issue DMCA complaints; a "reasonable" DMCA policy of terminating repeat infringers does not require provider to actively police users or sites).
    • Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004) (in an extensive discussion of Amazon.com's repeat infringer policy, holding that (1) a termination policy need not eliminate all infringers in order to be "reasonably implemented"; (2) repeated "takedown" notices alone are not sufficient to trigger termination obligation, contra Perfect 10 v. CCBill, infra; and (3) implementation details of the termination policy need not be communicated to users).
    • In re Aimster Copyright Litigation, 252 F.Supp.2d 634, 659 (N.D.Ill.2002), aff'd, 334 F.3d 643 (7th Cir.2004) (policy adequately adopted when users informed they "may have their access to all services terminated" for repeated copyright violations, but not reasonably implemented where defendant deliberately designed P2P system so as to make implementation impossible).
    • Ellison v. Robertson, 357 F.3d 1072,1080 (9th Cir. 2004) (holding that trialable issues as to "reasonable implementation" remained where AOL had failed allowed notices of infringement to go unheeded).
    • Perfect 10 v. Cybernet, 213 F.Supp.2d 1146, 1176-77 (C.D. Cal. 2002) (OSP need not conduct active investigation of possible infringement or make a decision regarding difficult infringement issues).
    • CoStar Group, Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688, 704 (D. Md. 2001) (policy must warn users who repeatedly infringe copyrights that there is a “realistic threat” of losing account access).
    • See generally David Nimmer, Repeat Infringers, 52 J. of the Copyright Society 167 (2005) (extensively analyzing obligations imposed by 512(i) on service providers with respect to terminating repeat infringers).
  2. Accommodate Standard Technical Measures. Section 512(i)(1)(B) requires that service providers seeking the protection of the DMCA safe harbors accommodate and not interfere with “standard technical measures” for the identification or protection of copyrighted works. This applies only to measures that have been developed pursuant to a broad industry consensus, are available to any person on reasonable and nondiscriminatory terms, and do not impose substantial costs or burdens on service providers. 17 U.S.C. 512(i)(2).
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Prerequisites for some safe harbors

In order to claim the 512(c) safe harbor, a provider of information storage must designate an "agent to receive notifications of claimed infringement," register that agent with the Copyright Office, and list contact information on the ISP's site or service. 17 U.S.C. 512(c)(2)

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Innocent Service Providers

DMCA immunity “is not presumptive, but granted only to ‘innocent’ service providers” ALS Scan v. Remarq Communities, Inc., 239 F.3d 619, 625 (4th Cir. 2001). The following conditions must be met to obtain the protections of the DMCA with respect to the covered activity of providing storage space and information location tools:

  1. The service provider must have neither actual knowledge that the material or activity is infringing nor awareness of facts or circumstances from which infringing activity is apparent. While similar to the contributory infringement standard, courts have applied it differently. See CoStar Group, Inc. v. LoopNet, Inc., 164 F. Supp. 2d 688, 705 (D. Md. 2001) (“The determination of contributory infringement liability turns on a different issue of knowledge than the standard used to determine [defendant]’s eligibility for the safe harbor.”; see also Hendrickson, 165 F.Supp.2d at 1093 (describing test in Section 512 context as “actual or constructive knowledge that particular listings were being used by particular sellers to sell [a particular infringing work] (emphasis added)). Compare with H.R. Rep. No. 105-551, Part 2, at 53 (Congressional legislative history describing “red flag” test, using the example of obvious pirate software website as providing knowledge). See also Perfect 10 v. CCBill, __ F.3d __ (2007) (knowledge of sites called "illegal.net" and "stolencelebritypics.com" and/or sites listing passwords not enough to trigger red flag knowledge).
  2. The service provider must not have both (a) the right and ability to control infringing activity and (b) receive a financial benefit directly attributable to such activity. A right and ability to control, “as the concept is used in the DMCA, cannot simply mean the ability of a service provider to remove or block access to materials posted on its website or stored in its system”. Costar Group, Inc. v. Loopnet, Inc., 164 F.Supp.2d 688, 704 (D.Md. 2001); Perfect 10 v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1181 (C.D.Cal. 2002) (“closing the safe harbor based on the mere ability to exclude users from the system is inconsistent with the statutory scheme.”).

    According to the Ninth Circuit in Perfect v. CCBill, "direct financial benefit" should be interpreted consistent with the "similarly-worded common law standard for vicarious copyright liability" and thus the test under that Circuit's Napster ruling would be whether the infringing conduct is a "draw" for customers of the provider. The legislative history of the DMCA suggests that it would not be considered a direct financial benefit “where the infringer makes the same kind of payment as noninfringing users of the provider’s service.” H.R. Rep. No. 105551 (II) at 54.
  3. Upon notification to the designated agent of alleged infringement, the service provider must respond expeditiously to remove, or disable access to, the material in question. In Hendrickson, the court found that informing eBay that counterfeit works were being offered and sold on eBay’s website without identifying the listings by the eBay item numbers was insufficient notice. Hendrickson, 165 F.Supp.2d at 1090 (the court also noted that in other instances that a blanket notice could be sufficient). However, in ALS Scan the court found that when a “letter provides notice equivalent to a list of representative works that can be easily identified by the service provider, the notice substantially complies with the notification requirements.” ALS Scan, 239 F.3d at 625. In Perfect v. CCBill, the Ninth Circuit held that "Compliance is not “substantial” if the notice provided complies with only some of the requirements of § 512(c)(3)(A)."
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Steps to Take upon Notice of Infringement

The protection from liability available under Sections 512(c) and (d) of the DMCA applies only if the service provider responds expeditiously to remove or disable access to material in accordance with the DMCA’s notice and takedown provisions. The DMCA shields the service provider from liability upon good faith removal of allegedly infringing material in response to a notice received under the DMCA. The service provider must also respond to any counter notifications received and possibly replace the removed material. Therefore, a service provider should take–and document–the following steps upon receipt by a designated agent of a proper notice of alleged infringement:

  1. Verify the Notice. Proper notice must substantially comply with the requirements of the DMCA. 17 U.S.C. § 512(c)(3). The notice must: (1) contain the physical or electronic signature of claimant; (2) identify the allegedly infringing material sufficiently to permit its removal or limit access; (3) provide information sufficient to contact the party providing the notice; (4) contain a statement that the complaining party has a good faith belief that use of the material is not authorized; and (5) contain a statement that the information in the notice is accurate and, under penalty of perjury, that either the owner or the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. Promptly Remove the Material. Upon receipt of a proper notice, promptly remove or disable access to the material in question.
  3. Notify the Person Whose Material Was Removed. Take reasonable steps to promptly notify the affected user that the material has been removed or access to it has been disabled.
  4. Notify Complaining Party Upon Receipt of Counter Notification. Upon receipt of a “counter notification” from the affected user, promptly provide the complaining party with a copy of the counter notification, and inform that person that access to the removed material will be restored in 10 business days. A “counter notification” must: (1) contain either the physical or electronic signature of the user; (2) identify the material that has been removed or to which access has been disabled and the location at which such material appeared before its removal or disabling; (3) contain a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and (4) contain the user’s name, address and telephone number, and a statement that the user consents to the jurisdiction of the federal district court for the jurisdiction where the user is located. 17 U.S.C. § 512(g)(3).
  5. Replace Material Unless Complaining Party Proceeds with Infringement Action. Replace the removed material or re-enable access to it in not less than 10 nor more than 14 business days following receipt of the counter notice, unless the designated agent first receives notice from the person who submitted the original notification that that person has filed an action seeking a court order to restrain the infringing activity relating to the material on the service provider’s system.
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DMCA Misuse

Section 512(f) of the DMCA creates liability for "Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification."

"'Knowingly' means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations." Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204 (N.D.Cal. 2004) (finding misuse when DMCA notice sent about clear fair use). "'Material' means that the misrepresentation affected the ISP's response to a DMCA letter." Id.

In Rossi v. Motion Picture Ass'n of America, 391 F.3d 1000 (9th Cir. 2004), the Ninth Circuit adopted a "subjective" good faith standard, stating "[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake." The Court noted that Amci has argued "that computers conducting automated searches cannot form a belief consistent with the language of the DMCA, because they cannot distinguish between infringing content and content that merely contains words that suggest infringement." However, the Court distinguished automated searches, noting that, while the MPAA uses automated searches for its investigations, the site at issue "was located and examined using human review." See also Dudnikov v. MGA Entertainment, Inc., 410 F.Supp.2d 1010 (D. Colo. 2005) ("MGA was required to show that it had a sufficient basis to form the required good faith belief that the Plaintiffs' auction infringed on its rights, and that its actions therefore complied with the notice and takedown requirements under the DMCA").

Novotny v. Chapman, 2006 WL 2335598 (W.D.N.C. 2006) denied a motion for preliminary injunction to stop improper notices.

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DMCA Subpoenas

Section 512(h) of the DMCA allows copyright holders to subpoena service providers for user identity information without filing a lawsuit.

  1. Recording Ind. Ass'n of Am. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003) cert denied, 125 S.Ct. 309, 160 L.Ed.2d 222 (2004), and cert. denied sub nom, Verizon Internet Services, Inc. v. Recording Industry Ass'n of America, Inc., 125 S.Ct. 347, 160 L.Ed.2d 222 (2004). The D.C. Circuit held that as a matter of statutory interpretation, the DMCA's subpoena provisions did not apply to cases in which the ISP was merely a conduit for alleged peer-to-peer file transfer. Since the RIAA could not properly send a 512(c)(3)(a) notification of claimed infringement for alleged peer-to-peer infringements, it could not use the 512(h) subpoena that depended on such notification. The court granted Verizon's motion to quash without reaching the constitutional arguments addressed below.
    1. In re Verizon Internet Services, Inc., Subpoena Enforcement Matter, Recording Industry Association of America v. Verizon Internet Services, 257 F. Supp. 2d. 244 (D.D.C. 2003). In April 2003, the court denied Verizon’s motion to quash a second subpoena holding that “the subpoena power authorized under § 512(h) of the DMCA does not violate the case or controversy requirement of Article III and does not abridge the First Amendment rights of Internet users.” Id. at 247. The court also denied Verizon’s motion to stay pending appeal because it could not show irreparable harm or that it was likely to succeed on appeal. In re Verizon Internet Services, Inc., Supoena Enforcment Matter, Regarding Industry Assoc. of America v. Verizon Interent Services, 258 F. Supp. 2d. 6 (D.D.C. 2003). See subsection D(1)(b)(1)(ii), above.
  2. In re: Charter Communications, Inc., Subpoena Enforcement Matter, 393 F.3d 771 (8th Cir. 2005). The 8th Circuit followed the D.C. Circuit's lead, granting Charter's motion to quash subpoenas on the same statutory interpretation grounds.
  3. Pacific Bell Internet Servs v. RIAA, 2003 U.S. Dist. LEXIS 21659 (N.D. Cal. 2003). Pacific Bell Internet Services challenged subpoenas issued by RIAA, MediaSentry, and Titan Media. That suit was ordered transferred to the D.C. District prior to the D.C. Circuit's decision in RIAA v. Verizon, above.
  4. In re Subpoena To University of North Carolina at Chapel Hill, 367 F.Supp.2d 945 (M.D.N.C. 2005) (quashing Doe subpoena and holding that 512(h) subpoenas are not applicable to 512(a) ISPs)
Denial of the RIAA's DMCA subpoenas has not stopped their efforts to identify and sue peer-to-peer infringers. The RIAA's member record labels have turned to Doe lawsuits, filing complaints against as many as 250 Does and then issuing pre-service discovery subpoenas to ISPs to obtain identifying information for the Does. Most courts have granted these discovery requests, despite arguments about the suits' jurisdictional flaws or impingement on constitutionally protected rights to anonymous speech. See EFF's RIAA v. The People (http://www.eff.org/IP/P2P/riaa-v-thepeople.php).
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Case Law Interpreting the DMCA Safe Harbor Provisions

  1. ALS Scan v. Remarq Communities, Inc., 239 F.3d 619 (4th Cir. 2001)
  2. Hendrickson v. eBay, 165 F. Supp. 2d 1082 (C.D. Cal. 2001)
  3. Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. 2002)
  4. A & M Records, Inc. v. Napster Inc., 239 F.3d 1004 (9th Cir. 2001).
  5. Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Cal. 2002); 357 F.3d 1072 (9th Cir. 2004)
  6. In Re Aimster Copyright Litig., 252 F. Supp. 2d 634 (N.D. Ill. 2002); 334 F.3d 643 (7th Cir. 2003)
  7. Rossi v. Motion Picture Ass'n of Am., Inc., 391 F.3d 1000 (9th Cir. 2004)
  8. CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004)
  9. Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090 (W.D. Wash. 2004)
  10. Perfect 10, Inc. v. CCBill LLC, No. 04-57143, 04-57207 (9th Cir. March 29, 2007)
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Anti-Circumvention and Anti-Trafficking Provisions

Sections 1201(a) and (b) of the DMCA prohibit the circumvention of technological measures that control access to or uses of copyrighted works and also prohibit trafficking in circumvention technology. Prior to its enactment, courts had permitted the sale of devices that unlocked copyright protection mechanisms on other products, so long as such products were capable of substantial noninfringing uses. See Vault Corp. v. Quaid Software (http://cyber.law.harvard.edu/ilaw/Contract/vault.htm), 847 F.2d 255 (5th Cir. 1988). The DMCA anti-circumvention provisions create civil remedies and provide for criminal sanctions. See 17 U.S.C. §§ 1203 (http://www.copyright.gov/title17/92chap12.html#1203), 1204 (http://www.copyright.gov/title17/92chap12.html#1204).

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Scope of Circumvention Prohibition

Section 1201(a) (http://www.copyright.gov/title17/92chap12.html#1201) addresses “access control” measures, prohibiting both the conduct of circumventing those measures and devices that circumvent them. Section 1201(a)(1) provides: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Section 1201(a)(2) prohibits the manufacture, importation, offering to the public, providing or otherwise trafficking in any technology, product, service, device, or component to circumvent access control measures. Thus, §1201(a) prohibits both the act of circumventing access control measures, as well as trafficking in products, services and devices that circumvent access control measures.

Section 1201(b) (http://www.copyright.gov/title17/92chap12.html#1201) prohibits the manufacture, importation, offering to the public, providing or otherwise trafficking in any technology, product, service, device, or component to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under the Copyright Act, including the right to reproduce, distribute, publicly perform, or publicly display a copyrighted work. The type of technological measure addressed in §1201(b) includes copy-control measures and other measures that control uses of works that would infringe the exclusive rights of the copyright owner. The technologies protected by 1201(b) are frequently referred to as "copy controls." Unlike §1201(a), which prohibits both the act of circumvention and trafficking in devices that circumvent, §1201(b) does not prohibit the act of circumventing copy control measures. This preserves the ability to circumvent in order to make noninfringing uses of copyrighted works that are protected by copy control measures.

The following grid illustrates the relationship between these concepts:

tech controls access to work tech controls copying, distribution, public display, public performance of work
Act of Circumvention 1201(a)(1) no prohibition (general copyright law applicable)
Trafficking in Circumvention Tools 1201(a)(2) 1201(b)
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Copyright Office Triennial DMCA Rule-Making

In the House of Representatives, the DMCA was sequentially referred to the Committee on Commerce after it was reported out of the Judiciary Committee. See S. Rep. No. 105-190 (http://www.hrrc.org/pdf/S._Rept._105-190.pdf) (1998), and H.R. Rep. No. 105-551, pt. I (http://www.hrrc.org/pdf/HRept_105-551__May_22_.pdf) (1998). The Commerce Committee was concerned that section 1201, in its original form, might undermine Congress' commitment to fair use. While acknowledging that the growth and development of the Internet has had a significant positive impact on the access of students, researchers, consumers, and the public at large to information, the Committee was concerned that “marketplace realities may someday dictate a different outcome, resulting in less access, rather than more, to copyrighted materials that are important to education, scholarship, and other socially vital endeavors.” In order to address such possible developments, the Commerce Committee proposed a modification of § 1201 which it characterized as a “‘fail-safe’ mechanism.” In the words of the Committee Report, “This mechanism would monitor developments in the marketplace for copyrighted materials, and allow the enforceability of the prohibition against the act of circumvention to be selectively waived, for limited time periods, if necessary to prevent a diminution in the availability to individual users of a particular category of copyrighted materials.”

Accordingly, Congress enacted 1201(a)(1)(C), which requires the Register of Copyrights to conduct a rulemaking proceeding and, after consulting with the Assistant Secretary for Communications and Information of the Department of Commerce, recommend to the Librarian whether he should conclude “that persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under [§ 1201(a)(1)(A)] in their ability to make noninfringing uses under [Title 17] of a particular class of copyrighted works.”

Based on these recomendations, the Librarian is empowered to grant exemptions for conduct that would otherwise violate 1201(a)(1). Such exemptions last for three year periods. “The goal of the proceeding is to assess whether the implementation of technological protection measures that effectively control access to copyrighted works is adversely affecting the ability of individual users to make lawful uses of copyrighted works .... The primary goal of the rulemaking proceeding is to assess whether the prevalence of these technological protections, with respect to particular categories of copyrighted materials, is diminishing the ability of individuals to use these works in ways that are otherwise lawful."

Unfortunately, the triennial rulemaking has been largely ineffective at protecting fair use and other noninfringing activities impaired by technical protection measures. First, the Librarian is not empowered to grant any exemptions to the trafficking prohibitions contained in 1201(a)(2) or 1201(b). Accordingly, only those who have the technological ability to circumvent are directly assisted by the exemptions. Second, the Copyright Office has imposed a heavy burden on those who seek exemptions.

The Librarian, acting on the recommendations of the Register of Copyrights, has granted the following exemptions:

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2000-2003 Exemptions

1. Compilations consisting of lists of websites blocked by filtering software applications.

2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness.

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2003-2006 Exemptions

1. Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of e-mail.

2. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

3. Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a "specialized format.

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Additional resources regarding DMCA triennial rulemaking:

Copyright Office DMCA Rulemaking Page (http://www.copyright.gov/1201/)

Seth Finkelstein, How to Win (DMCA) Exemptions and Influence Policy (http://www.eff.org/IP/DMCA/?f=finkelstein_on_dmca.html)

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Statutory Exceptions

1201(d): Previewing by Libraries, Archives and Educational Institutions

1201(e): Law Enforcement, Intelligence and Government Activities

1201(f): Reverse Engineering

1201(g): Encryption Research

1201(h): Censorware

1201(i): Protection of Personally Identifying Information

1201(j): Security Testing

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Anti-Circumvention Cases

  1. Universal City Studios v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000), aff'd sub nom Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). Plaintiffs brought suit against defendant Eric Corley and his company, 2600 Enterprises, Inc., for posting DeCSS on the 2600 website and for providing links to other websites on which DeCSS is posted. DeCSS is a program that circumvents a DVD’s CSS encryption technology, thereby allowing users to make copies of DVDs on their computers. After trial, the district court ruled that distribution of DeCSS violated 1201(a)(2), rejected First Amendment challenges to the application of the statute, and found that simply linking to DeCSS could, in some circumstances, constitute prohibited trafficking under 1201(a)(2). The Court of Appeals affirmed.
  2. United States v. Elcomsoft Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002). Elcomsoft, a Russian software company, was indicted by a federal jury for making available for purchase on the company website software that allegedly circumvented copyright protections on Adobe eBooks. The district court denied Elcomsoft’s motion to dismiss, finding that the DMCA bans all tools that circumvent technological protections, regardless of whether the tools are used to infringe copyrights or to enable fair use. The court also rejected Elcomsoft’s claims that the DMCA was too restrictive of its First Amendment rights and too vague to be enforced under the Fifth Amendment due process clause. A jury found defendants not guilty of five counts of copyright violations.
  3. RealNetworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wash. 2000). The court granted a preliminary injunction against Streambox with respect to its Streambox VCR and Ferret products, and denied a preliminary injunction with respect to its Ripper software. The court found that the Streambox VCR violated the DMCA by circumventing copy controls placed by RealNetworks on streamed copyrighted materials so as to allow end users to make copies of the streamed files. However, the court held that defendant’s Ripper software, which converted media files between various formats including the RealMedia format, did not violate the DMCA. The court also held that defendant’s Ferret software, which altered the appearance and operation of RealNetworks’ media player, vicariously and contributorily infringed RealNetworks’ copyright in the player and created an unlawful derivative use.
  4. Lexmark Int’l v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004). Lexmark filed suit against defendants for copyright infringement and DMCA Section 1201 violations. Lexmark’s practice was to install chips in replacement toner cartridges that were necessary for the printer to function, thereby preventing Lexmark printer owners from buying replacement ink from third party manufacturers. Defendants manufactured and sold to toner manufacturers chips that allowed non-Lexmark ink cartridges to function in Lexmark printers. The district court entered a preliminary injunction against defendants. The Court of Appeals reversed.
  5. Complaint, Felten v. RIAA, No. CV-0102669 (D.N.J. Nov. 27, 2001). Princeton University computer science professor Edward Felten filed a declaratory judgment action against the Recording Industry Association of America after the RIAA allegedly threatened Professor Felten with a lawsuit under the anti-circumvention provisions of the DMCA if he presented his paper revealing the weaknesses in digital copy protection technologies at a conference. Felten’s declaratory relief action claimed that the DMCA violated his First Amendment rights to publish his research. The court dismissed the case for lack of an actual controversy after the RIAA promised not to sue Felten for presenting the paper.
  6. Sony Computer Entm't Am., Inc. v. GameMasters, 87 F. Supp. 2d 976 (N.D. Cal. 1999)
  7. 321 Studios v. Metro-Goldwyn-Mayer Studios, Inc., 307 F.Supp.2d 1085 (N.D. Cal. 2004). Court granted partial summary judgment in favor of movies studios, finding that distribution of DVD copying software violated 1201(a)(2) and (b). The court found that authority of DVD purchasers to access their own DVDs did not protect 321 Studios and rejected constitutional challenges based on the First Amendment and Copyright and Commerce Clauses. See also Paramount Pictures, Corp. v. 321 Studios, No. 03-CV-8970 (RO), slip op. (S.D.N.Y. Mar. 3, 2004) (injunction against manufacturing or distributing DVD-copying software).
  8. Pearl Investments, LLC v. Standard I/O, Inc., 257 F.Supp.2d 326 (D.Me. 2003).
  9. I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc., 307 F.Supp.2d 521 (S.D.N.Y. 2004).
  10. Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005).
  11. Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2005). Court affirmed summary judgment for Defendant on other grounds, finding that in order for a plaintiff to bring a successful claim under Section 1201, it needed to show that the act of circumvention or device that circumvented the copy-protection technology at issue also "facilitates infringing a right protected by the Copyright Act" and thus creates a nexus between the circumvention and copyright protection. Since access to the garage door opening software in the instant case did not facilitate infringement of the software in any way, no claim under Section 1201 could stand.
  12. Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005). The Federal Circuit affirmed its holding in Chamberlain that any act of circumvention or circumvention device must facilitate infringement of a protected right under the Copyright Act in order for Section 1201 to be violated. Finding that Section 117 protected Defendants' actions from any claim of infringement, the Court reversed the preliminary injunction granted by the court below. On summary judgment, the district court dismissed plaintiff's DMCA claim, noting that it had not shown any evidence of the alleged circumvention facilitating infringement. It also found that under a theory similar to that in the Lexmark case, much of the software allegedly protected by the technological measure was "freely available" in an unrestricted format on the hard drive and floppy disks that the Plaintiff provided to all its customers. Finally, the court distinguished this case from the Davidson case by noting that in that case, the copyrighted works were "not freely available," even to purchasers of the product.
  13. Gilman v. Keller & Heckman, LLP, --- F.Supp.2d ---, 2005 WL 3077260 (D.D.C., November 10, 2005) (use of username/password not circumvention).
  14. Auto Inspection Services, Inc. v. Flint Auto Auction, Inc. et al. (E.D. Mich. 2007) (Holding that notification of access to a program is not an access control technology under Section 1201)
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Webcasting

The Digital Millenium Copyright Act sets a statutory procedure for obtaining a license for webcasts, 17 U.S.C. §114(d)(2), with a lengthy list of requirements to qualify for the statutory license for webcasting. 17 U.S.C. §114(d)(2)(A); (d)(2)(C). The requirements include:

  • The payment of royalties as set by the negotiated or statutory rate;
  • A webcaster may not play in any three-hour period (1) more than three songs from a particular album, including no more than two consecutively, or (2) four songs by a particular artist or from a boxed set, including no more than three consecutively. This limit is called the "sound recording performance complement;"
  • Prior announcements of when a song will be played are not permitted;
  • Programs that are posted on a website for listeners to hear repeatedly on-demand may not be less than five hours in duration;
  • Looped or continuous programs may not be less than three hours in duration;
  • When performing a sound recording, a webcaster must identify the sound recording, the album, and the featured artist, if receivers of the service are capable of displaying this information;
  • A webcaster may not perform a sound recording in a way that falsely suggests a connection between the copyright owner or recording artist and a particular product or service; and
  • A webcaster must accommodate and cooperate with certain technical copyright protection measures.
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Vessel Hull Design Protection

Listed for completeness, the Vessel Hull Design Protection Act provides sui generis protection for vessel hulls (overriding the result of Bonito Boats v. Thunder Craft Boats, 489 U.S. 141 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=489&invol=141) (1989)). See http://www.copyright.gov/reports/vhdpa-report.pdf

Chapter 3 - Copyright
General · Rights Acquisition · Infringement Issues · Digital Millennium Copyright Act (DMCA) · Non-Preemptable Common Law Claims

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