THE
DIGITAL MILLENNIUM COPYRIGHT ACT
Jonathan
Band1
Morrision & Foerster LLP
Washington, D.C.
jband@mofo.com
On October 12, 1998, Congress passed the
Digital Millennium Copyright Act (DMCA), a complex piece of
legislation which makes major changes in U.S. copyright law to
address the digitally networked environment. The President is
expected to sign the DMCA shortly. This memorandum discusses
the law's five titles which:
(1) implement the WIPO Internet
Treaties;
(2) establish safe harbors for online
service providers;
(3) permit temporary copies of programs
during the performance of computer maintenance;
(4) make miscellaneous amendments to the
Copyright Act, including amendments which facilitate
Internet broadcasting; and
(5) create sui generis protection for boat
hull designs. A controversial title establishing database
protection was omitted by the House-Senate Conference, as
was a provision which would have reversed the Supreme
Court's decision in Quality King v. L'anza, 118 S. Ct. 1125
(1998), which concerned parallel imports.
TITLE I: WIPO TREATIES
IMPLEMENTATION
Title I of the DMCA amends U.S. copyright
law to comply with the World Intellectual Property
Organization (WIPO) Copyright Treaty and the WIPO Performances
and Phonograms Treaty, adopted at the WIPO Diplomatic
Conference in December 1996.
Two major provisions in the WIPO treaties
require contracting parties to provide legal remedies against
circumventing technological protection measures and tampering
with copyright management information. To comply with these
provisions, the DMCA adds a new chapter, Chapter 12, to Title
17 of the United States Code.
Circumvention of
Copyright Protection Systems - New Section 1201
The DMCA prohibits gaining unauthorized
access to a work by circumventing a technological protection
measure put in place by the copyright owner where such
protection measure otherwise effectively controls access to a
copyrighted work.2 This prohibition on unauthorized access
takes effect two years after enactment on the DMCA. Over this
two year period, the Librarian of Congress is to conduct a
rulemaking proceeding to determine appropriate exceptions to
the prohibition.3
To facilitate enforcement of the copyright
owner's right to control access to his copyrighted work, the
DMCA also prohibits manufacturing or making available
technologies, products and services used to defeat
technological measures controlling access.4 Similarly, the
DMCA prohibits the manufacture and distribution of the means
of circumventing technological measures protecting the rights
of a copyright owner, e.g., measures which prevent
reproduction. But to ensure that legitimate multipurpose
devices can continue to be made and sold, the prohibition
applies only to those devices that:
- are primarily designed or produced for
the purpose of circumventing;
- have only a limited commercially
significant purpose or use other than to circumvent; or
- are marketed for use in circumventing.
Id.
Unlike the prohibition on acts of
circumvention, which takes effect in two years, the
prohibition on the manufacture and distribution of
circumvention devices takes immediate effect.
The DMCA does not affect rights, remedies,
limitations, or defenses to copyright infringement, including
fair use, nor does it alter the existing doctrines of
vicarious and contributory liability.5 However, a defense to
copyright infringement is not a defense to the prohibition
established in Chapter 12. The DMCA also does not require
manufacturers of consumer electronics, telecommunications, and
computing products to design their products to respond to any
particular technological protection measure.6 (However, as
discussed below, manufacturers of certain analog recording
devices will be required to respond to two known analog copy
protection technologies.)
Congress recognized that there may be
legitimate reasons for engaging in circumvention. In addition
to the rulemaking noted above, Congress specifically provided
for a number of exceptions to the prohibition on circumvention
and circumvention devices.
Reverse Engineering Exception. Section
1201(f) allows software developers to circumvent technological
protection measures of a lawfully obtained computer program in
order to identify the elements necessary to achieve
interoperability of an independently created computer program
with other programs. A person may reverse engineer the
lawfully acquired program only where the elements necessary to
achieve interoperability are not readily available and reverse
engineering is otherwise permitted under the copyright law.7
Furthermore, a person may develop and employ technological
means to circumvent and make available to others the
information or means for the purpose of achieving
interoperability.
Exception for Law Enforcement and
Intelligence Activities. The DMCA permits circumvention for
any lawfully authorized investigative, protective, or
intelligence activity by or at the direction of a federal,
state, or local law enforcement agency, or of an intelligence
agency of the United States.8
Encryption Research Exception. Recognizing
the need to improve the ability of copyright owners to prevent
the theft of their copyrighted works, Congress provided an
encryption research exception intended to advance the state of
knowledge in the field of encryption technology and to assist
in the development of encryption products.9 Circumvention in
the course of a good faith encryption research may be allowed
if the following conditions are met;
- the researcher lawfully obtained the
copyrighted work;
- circumvention is necessary for the
encryption research;
- the researcher made a good faith effort
to obtain authorization from the copyright owner before
the circumvention; and
- circumvention is otherwise permissible
under the applicable laws.10
In addition to the above factors, the DMCA
directs the court to consider three other factors:
- whether the information derived from the
research was disseminated to advance the knowledge or
development of encryption technology or to facilitate
infringement;
- whether the researcher is engaged in a
legitimate course of study, is employed, or is
appropriately trained or experienced in the field of
encryption technology; and
- whether the researcher timely notifies
the copyright owner with the findings and documentation of
the research.11
Furthermore, a person may develop and employ
or provide to his collaborator technological means to
circumvent for the sole purpose of performing acts of good
faith encryption research.
Security Testing Exception. In addition to
the encryption research exception, the DMCA provides another
exception for information security activities. The security
testing exception permits circumvention conducted in the
course of security testing if it is otherwise legal under
applicable law.12 Security testing is defined as obtaining
access, with proper authorization, to a computer, computer
system, or computer network for the sole purpose of testing,
investigating or correcting a potential or actual security
flaw, or vulnerability or processing problem.13 In determining
whether this exception is applicable, the DMCA requires the
court to consider whether the information derived from the
security testing was used solely to improve the security
measures or whether it was used or maintained so as not to
facilitate infringement.14 The DMCA also permits the
development, production or distribution of technological means
for the sole purpose of performing permitted acts of security
testing.15
Exception Regarding Minors. To alleviate
concern that the DMCA might inadvertently make it unlawful for
parents to protect their children from pornography and other
harmful material available on the Internet, the DMCA permits
the manufacture of a circumvention component whose sole
purpose is to assist parents in preventing access of minors to
objectionable material, provided that the component is
included in a product which does not itself violate the
provisions of Title I.
Protection of Personally Identifying
Information. The DMCA addresses personal privacy concerns by
permitting circumvention for the limited purpose of
identifying and disabling as technological means such as a
"cookie" which collects or disseminates personally
identifying information reflecting the online activities of
the user.16 This exception is only applicable if the user is
not provided with adequate notice and the capability to
prevent or restrict such collection or dissemination, and if
the circumvention has no other effect on the ability of any
person to gain access to any work. Interestingly, this
provision permits acts of circumvention to protect privacy,
but does not specifically permit the development and
distribution of the means of effectuating that circumvention.
Exemption for Nonprofit Libraries, Archives,
and Educational Institutions. The DMCA provides an exemption
for nonprofit libraries, archives, and educational
institutions to gain access to a commercially exploited
copyrighted work solely to make a good faith determination of
whether to acquire such work.17 A qualifying institution may
gain access only when it cannot obtain a copy of an identical
work by other means and access may not last longer than
necessary. Such an entity is not allowed to use this exemption
for commercial advantage or financial gain. Here, too, the
provision does not specifically permit the development and
distribution of the devices necessary to effectuate the
permitted circumvention.18
Certain Analog Devices and Certain
Technological Measures. Title I contains a provision which
specifically addresses the protection of analog television
programming and prerecorded movies in relation to recording
capabilities of ordinary consumer analog video cassette
recorders. It requires analog video cassette recorders to
conform to the two forms of copy control technology that are
in wide use in the market today - the automatic gain control
technology and the colorstripe copy control technology.19 The
provision prohibits tampering with these analog copy control
technologies to render them ineffective by redesigning of
video recorders or by intervention of "black box"
devices or "software hacks."
As an essential element of this provision,
Congress included specific encoding rules to preserve
long-standing consumer home taping practices. Copyright owners
may use these technologies to prevent the making of a viewable
copy of a pay-per-view program or a prerecorded tape, for
example, but cannot limit the copying of traditional
over-the-air broadcasts or basic and extended tiers of
programming services, whether provided through cable or other
wireline, satellite, or future over-the-air terrestrial
systems. In addition, copyright owners may only utilize these
technologies to prevent the making of a 'second generation'
copy of an original transmission provided through a
pay-television service.
This provision becomes effective in eighteen
months. Professional devices and Beta and 8mm VCRs, however,
are exempt from its requirements.
Copyright Management
Information - New Section 1202
The DMCA prohibits tampering with copyright
management information (CMI). Specifically, the DMCA creates
liability for any person who intentionally provides or
distributes false CMI.20 Also, the DMCA prohibits intentional
removal or alteration of CMI, and knowing distribution of
illegally modified CMI is similarly proscribed.21 To be
covered by the DMCA, CMI must be conveyed in connection with a
copyrighted work and CMI may constitute any of the following:
- information that identifies the
copyrighted work, including the title of a work, the
author, and the copyright owner;
- information that identifies a performer
whose performance is fixed in a work, with certain
exceptions;
- in case of an audiovisual work,
information that identifies the writer, performer, or
director, with certain exceptions;
- terms and conditions for use of the work;
- identifying numbers or symbols that
accompany the above information or links to such
information, for example, embedded pointers and hypertext
links; or
- other information as the Register of
Copyrights may prescribe by regulation, with an exception
to protect the privacy of users.22
Limitations on Liability. The DMCA
recognizes special problems that certain broadcasting entities
may have with transmission of CMI. Such entities include radio
and television broadcasters, cable systems, and persons who
provide programming to such broadcasters or systems. Those
entities which do not intend to induce, enable, facilitate or
conceal infringement may limit their liability in certain
circumstances.23
In the case of an analog transmission, a
transmitting entity will not be held liable for violating the
DMCA if it is not "technically feasible" to avoid
the violation or if avoiding the violation would "create
an undue financial hardship."24 In the case of an digital
transmission, the DMCA contemplates voluntary digital
transmission standards for the placement of CMI.25 Different
standards are likely to be set for the placement of CMI in
different categories of works. If a digital transmission
standard is set in a voluntary, consensus standard-setting
process involving a representative cross-section of the
relevant copyright owners and relevant transmitting industry,
a transmitting entity will not be held liable for a third
party's placement of CMI that deviates from the standard,
provided that the entity does not intend to induce, enable,
facilitate or conceal infringement. Until such a standard is
set for a category of works, a transmitting entity will not be
liable for violation only if the transmission of the CMI
would: (1) cause a perceptible visual or aural degradation of
the digital signal; or (2) conflict with an applicable
government regulation or a certain, applicable industry-wide
standard for the digital transmission.26
Civil Remedies and Criminal Penalties
The DMCA creates civil remedies and criminal
penalties for violations of Sections 1201 or 1202. A civil
action may be brought in a federal district court.27 The court
has broad powers to grant injunctions and award damages, costs
and attorney's fees.28 The court may also order the
impounding, the remedial modification or the destruction of
the devices or products involved in the violation. The court
may punish repeat offenders by awarding treble damage
awards.29 Generally, it is up to the court to decide whether
to reduce damage awards against innocent violators. But, in
the case of nonprofit library, archives or educational
institutions, the court must remit damages if it finds that a
qualifying entity had no reason to know of the violation.30
The DMCA prescribes significant criminal
penalties for willful violations committed for commercial
advantage or private financial gain.31 Criminal penalties are
inapplicable to nonprofit libraries, archives, and educational
institutions.32
Technical Amendments
Title I also contains a variety of technical
amendments. It amends the federal copyright law to grant
copyright protection to: (1) sound recordings that were first
fixed in a treaty party (a country or intergovernmental
organization other than the United States that is a party to
specified international copyright and other agreements); and
(2) pictorial, graphic, or sculptural works incorporated in a
building or other structure or an architectural work embodied
in a building located in the United States or a treaty party.
The DMCA treats works published in the United States or a
treaty party within 30 days after publication in a non-U.S.,
non-treaty party as first published in the United States or a
treaty party for purposes of conferring protection.
Title I provides that no works other than
sound recordings shall be eligible for protection solely by
virtue of U.S. adherence to the Geneva Phonograms Convention
or the WIPO Performances and Phonograms Treaty. It revises the
definition of "eligible country," for purposes of
provisions regarding copyright in restored works, to include
nations other than the United States that: (1) become World
Trade Organization member countries after the date of
enactment of the Uruguay Round Agreements Act; (2) are or
become nations adhering to the Berne Convention; (3) adhere to
the WIPO Copyright or Performances and Phonograms Treaties; or
(4) become subject to a certain presidential proclamation of
copyright restoration after such enactment date. It includes
sound recordings in the definition of "restored
work" if the source country for the work is an eligible
country solely by its adherence to the WIPO Performances and
Phonograms Treaty.
TITLE II: ONLINE
SERVICE PROVIDER LIABILITY
Title II of the Act limits an online service
provider's ("OSP") liability for copyright
infringement in several important situations. Because the term
"service provider" is defined extremely broadly in
some instances - "a provider of online services or
network access, or the operator of facilities therefor"33
- many entities which are not in the business of providing
online services may nonetheless take advantage of Title II's
protection.34
The exemptions from liability that the DMCA
creates are additional to any defense that an OSP might have
under copyright law or any other law.35 In essence, the Act
creates certain "safe harbors" for specified OSP
activity. If an activity falls within the safe harbor, then
the OSP qualifies for the exemption from liability; if the
activity does not come within the safe harbor, then the
questions of whether the activity in fact constitutes
infringement and whether the OSP has any defense are to be
decided under traditional copyright analysis. In addition,
whether an OSP qualifies for any particular exemption is
determined independently of whether the OSP qualifies for any
other exemption.36
General Conditions for
Eligibility
Termination Policy. To be eligible for any
of the exemptions, an OSP must adopt, reasonably implement,
and inform its subscribers and account holders (its
"Users") of, a policy providing for termination of
Users who are repeat infringers.37
Accommodation of Technical Measures. In
addition, an OSP must accommodate and not interfere with
"standard" technical measures used by copyright
owners to identify and protect copyrighted works. Such
technical measures might include, for example, digital
watermarks or technological means for preventing copying of a
work. In order to qualify as "standard", such a
measure must have been developed by a broad consensus of
copyright owners and OSPs in a fair multi-industry process,
must be available to anyone on reasonable and
nondiscriminatory terms, and must not impose substantial costs
on OSPs or substantial burdens on OSP systems.38
No Need to Monitor or Access. The Act makes
clear that in order to qualify for the exemptions, an OSP does
not need to monitor its service or affirmatively seek out
information about copyright infringement on its service
(except as part of the standard technical measures discussed
in the previous paragraph). In addition, the Act states that
an OSP does not have to access, remove, or block material in
order to qualify for its exemptions if such action is
prohibited by law (such as, for example, the Electronic
Communications Privacy Act).39 At the same time, the
Conference Report states that the legislation is not intended
to discourage OSPs from voluntarily monitoring their sites,
and that OSPs do not lose eligibility for the safe harbors by
virtue of such monitoring.
Safe Harbors for System
Storage and Information Locating Tools
The most straightforward exemptions in the
Act cover two common OSP activities: (1) storing material
(such as a Web page or chat room, for example) on an OSP's
system at the request of a User and (2) referring Users to
material at other online locations by means of, for example, a
search engine, a list of recommended sites, or a hypertext
link.40
The Act limits an OSPs liability for
copyright infringement based on the material stored or
referred to if the OSP meets certain conditions:
- the OSP doesn't actually know that the
material is infringing;
- the OSP isn't aware of information from
which the infringing nature of the material is apparent;
- if the OSP acquires such knowledge or
awareness, the OSP acts expeditiously to remove or block
access to the material;
- the OSP doesn't get a financial benefit
directly attributable to the infringing material (for
example, a special fee paid by each party that accesses
the material) while having the right and ability to
control the material; and
- the OSP complies with the "notice
and take down" provisions of the Act (discussed
below).41
Safe Harbors for System
Caching
A third safe harbor in the Act limits an
OSP's liability for system caching, in which an OSP makes a
temporary copy of popular Internet material requested by a
User so that the OSP can deliver that copy to subsequent
Users, which can be done more quickly and efficiently than
obtaining the original material for each subsequent User.42
This exemption applies to material (a) that
is originally placed online by someone other than the OSP (the
"Originator") and (b) that is transmitted from the
Originator, through the OSP's system, to a third party at that
third party's request. To qualify for the exemption from
liability for the intermediate and temporary storage of such
material, the OSP must meet the following conditions:
- the OSP's storage of the cached material
must be made through an automatic technical process and
must be for the purpose of providing the material to
subsequent Users who request the material;
- the OSP must transmit the cached material
to subsequent Users without modifying its content;
- the OSP must comply with any rules on
updating the cached material that are specified by the
Originator using a generally accepted industry standard
protocol, as long as such rules are not used by the
Originator to prevent or unreasonably impair system
caching;
- the OSP must not interfere with
technology associated with the cached material that
returns certain information to the Originator, as long as
such technology doesn't significantly interfere with the
performance of the OSP's system and is consistent with
generally accepted industry standard protocols;
- if the Originator has placed conditions
(such as payment of a fee or entry of a password) on
access to the cached material, the OSP must allow access
to the cached material only to subsequent Users that have
met such conditions; and
- if the original material from which the
cached copy was made has been removed or blocked and a
copyright owner provides notice to the OSP (pursuant to
certain "notice and take-down" provisions
discussed below), the OSP must act expeditiously to remove
or block access to the cached material that the copyright
owner alleges is infringing.43
-
Safe Harbors for
Transmission and Routing
A final safe harbor in the Act covers an
OSP's transmission, routing, or providing connections for
material through the OSP's system and for intermediate and
transient storage of material in the course of such activity.
In essence, this safe harbor covers an OSP's activities in
acting as a conduit for material travelling between other
parties.
To qualify for this exemption, several
conditions must be met:
- the transmission of the material must
have been initiated or directed by someone other than the
OSP;
- the activities covered by the exemption
must be carried out through an automatic technical process
and not by any selection of material by the OSP;
- the OSP must not select the recipients of
the material except as an automatic response to another
person's request;
- the OSP must not make any copy of the
material ordinarily accessible to anyone other than
intended recipients and must not keep any copy for longer
than reasonably necessary for the OSP's transmission,
routing, or connection; and
- the OSP must not modify the content of
the material as it transmits it through its system.44
Extent of Exemptions
from Liability
The safe harbors of the Act provide somewhat
different limitations on different types of remedies usually
available for copyright infringement.
Monetary Relief. If an OSP's activity
qualifies for any of the safe harbors in the Act, then the OSP
is not liable for any monetary relief for claims of copyright
infringement based on that activity. Monetary relief includes
damages, court costs, attorney's fees, and any other form of
monetary payment.
Injunctions. If an OSP qualifies for a safe
harbor under the Act, then the possible injunctive relief
against the OSP is limited. Under any safe harbor, a court may
issue an injunction restraining an OSP from providing access
to an identified User engaging in infringement by terminating
the User's specified accounts. With respect to the safe
harbors for system caching, system storage, and information
location tools, a court can also issue an injunction
restraining an OSP from providing access to infringing
material residing at a particular online site on the OSP's
system. Any other injunctive relief must be necessary to
prevent infringement of specified material at a particular
online location and must be the least burdensome to the OSP
among comparably effective forms of relief. With respect to
transmission and routing, a court can also issue an injunction
ordering an OSP to take specific reasonable steps to block
access to an identified online location outside the U.S.45
The Act also sets forth several additional
considerations, including the burden on an OSP's system, the
technical feasibility, and the interference with noninfringing
material, that a court must consider in the case of all the
safe harbors in deciding whether to grant injunctive relief.
The DMCA further limits the liability of nonprofit
institutions of higher education that act as OSPs for the
infringing acts of their faculty and graduate students when
performing teaching or research functions.
Notice and Take-Down
Provisions
Certain of the Act's exemptions apply only
if an OSP complies with the notice and take-down provisions of
the Act. These provisions allow copyright owners to notify an
OSP of allegedly infringing material on the OSP's system and
require the OSP to remove or block access to such material
after receiving such notice.
Designated Agent of OSP. An OSP must
designate, both to the Copyright Office and on its service,
the contact information for an agent that will receive such
notices.46
Form and Content of Notice. A notice from a
copyright owner must be in writing and must be signed by such
copyright owner or his or her agent and must include certain
specified information, including an identification of the
allegedly infringing material and information reasonably
sufficient for the OSP to locate the material or the reference
or link to it.47 If the OSP receives a notice that
substantially complies with the Act's requirements, then the
OSP must act expeditiously to remove or block access to the
material that is alleged to be infringing in order to remain
eligible for the exemption from liability.
Misrepresentations. The Act provides that
anyone who knowingly materially misrepresents under the Act
that material is infringing is liable for any damages incurred
by an OSP or a User as a result of the OSP relying on such
misrepresentation in removing or blocking material.48
Subpoenas. The Act also provides a procedure
by which a copyright owner can obtain from a court a subpoena
directing an OSP to disclose to the copyright owner
information sufficient to identify an alleged infringer of
material as to which the owner has sent a notice to the OSP.49
"Take Down"
Procedures
Exemption from Liability. If an OSP in good
faith removes or blocks access to material that it has cached,
stored at a User's request, or referred users to, either
because the OSP has received notice from a copyright owner or
because the OSP has become aware of information from which the
infringing nature of the material is apparent, the Act exempts
the OSP from any liability for such removal or blocking.50
Notice and Putback. In the case where an OSP
removes or blocks material stored on the OSP's system at the
User's request (such as the User's Web site) because the OSP
has received a notice from a copyright owner alleging
infringement, the OSP must take additional steps designed to
protect the User's rights, and which may lead to putting the
material back on the system.
- The OSP must take reasonable steps to
promptly notify the User that the OSP has removed or
blocked the material.
- The User may then send a "counter
notification" to the OSP stating that the removal or
blocking was a result of a mistake or a misidentification
of the material. (The Act provides for liability to the
OSP and the copyright owner for knowing material
misrepresentation in such counter notification.51)
- If the counter notification complies with
the statutory requirements, then the OSP, to remain exempt
from liability for the "take down", must provide
a copy of the counter notification to the copyright owner
that sent the original notice.
- Unless such copyright owner then notifies
the OSP that the owner has filed a court action seeking to
restrain the alleged infringement, the OSP must replace or
unblock the material within 10 to 14 business days of
receiving the counter notification.52
TITLE III: COMPUTER
MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Title III amends Section 117 of the
Copyright Act to ensure that independent service organizations
do not inadvertently become liable for copyright infringement
merely because they have turned on a computer in order to
service its hardware components.
Title III was proposed in response to the
decision in MAI Systems Corp. v. Peak Computer, Inc.53 MAI
involved the limitation on the exclusive rights in computer
programs contained in 17 U.S.C. § 117, which allows the
"owner" of a program to load the program into the
machine's random access memory, or "RAM." In MAI, an
independent service organization (ISO) serviced a computer
which used software licensed to, but not owned by, the
customer. The court held that the ISO infringed the copyright
in the program by loading the copyrighted software into the
RAM of the customer's computer, thereby making a
"reproduction" of the copy under 17 U.S.C. § 106.
The MAI court ruled that Section 117 only exempted
"owners" of software and not "licensees."
Title III amends Section 117 to effectively overrule MAI by
allowing the owner or lessee of a machine to make or authorize
the making of a copy of a computer program under certain
conditions for the purpose of repair or maintenance of the
computer hardware.
Specifically, the making of the copy is
allowed (1) if the copy is made "solely by virtue of the
activation of a machine that lawfully contains an authorized
copy of the computer program, for purposes only of maintenance
or repair of that machine," (2) if the new copy is used
for no other purpose and is destroyed upon completion of the
maintenance or repair, and (3) if "any computer program
... that is not necessary for that machine to be activated ...
is not accessed or used other than to make such new copy by
virtue of the activation of the machine." Significantly,
the exception applies only to RAM copies made during the
course of hardware maintenance, not software maintenance.
TITLE IV:
MISCELLANEOUS PROVISIONS
Title IV of the DMCA contains miscellaneous
amendments to the Copyright Act.
Provisions Relating to the Register of
Copyrights. Section 401 of the DMCA provides parity in
compensation between the Register of Copyrights and the
Commissioner of Patent and Trademarks and clarifies the duties
and functions of the Register of Copyrights.
Ephemeral Recordings. Section 402 of the
DMCA amends section 112 of Title 17 to address two issues
concerning the application of the ephemeral recording
exemption in the digital age. The first issue is the
relationship between the ephemeral recording exemption and the
Digital Performance Right in Sound Recordings Act of 1995
("DPRSRA"). Section 402 changes the existing
language of the ephemeral recording exemption (redesignated as
112(a)(1)) to extend explicitly to broadcasters the same
privilege with respect to digital broadcasts that they already
enjoy with respect to analog broadcasts.
The second issue is the relationship between
the ephemeral recording exemption and the anticircumvention
provisions in the new section 1201 of the Copyright Act.
Section 402 addresses the concerns that if use of copy
protection technologies became widespread, a transmitting
organization might be prevented from engaging in its
traditional activities of assembling transmission programs and
making ephemeral recordings permitted by section 112. Section
402 adds to section 112 a new paragraph that permits
transmitting organizations to engage in activities that
otherwise would violate section 1201(a)(1) in certain limited
circumstances when necessary for the exercise of the
transmitting organization's privilege to make ephemeral
recordings.
Distance Education Study. Section 403 of the
DMCA directs the Register of Copyright to consult with
representatives of copyright owners, nonprofit educational
institutions, and nonprofit libraries and archives and to
submit to the Congress within six months recommendations on
how to promote "distance education" through digital
technologies.
Exemption for Libraries and Archives.
Section 404 of the DMCA updates section 108 of the Copyright
Act to allow libraries and archives to take advantage of
digital technologies when engaging in specified preservation
activities. The amendment to subsection 108(a)(3) is intended
to ease the burden on libraries and archives of the current
law's requirement that a notice of copyright be included on
copies that are reproduced under section 108. Under this
amendment, such notice would be required only where the
particular copy that is reproduced by the library or archive
itself bears a notice. The amendment to subsection 108(b)
permits a library or archive to make up to three copies or
phonorecords, rather than just one, for purposes of
preservation and security or for deposit for research use in
another library or archives, and permits such copies or
phonorecords to be made in digital as well as analog formats.
The amendment provides that any such copy in a digital format
must not be otherwise distributed in that format and must not
be available to the public outside the premises of the library
or archives.
Scope of Exclusive Rights in Sound
Recordings; Ephemeral Recordings. Section 405 of the DMCA
contains various amendments to sections 112 and 114 of the
Copyright Act. The amendments are aimed at achieving two
purposes: first, to further a stated objective of Congress
when it passed the DPRSRA to ensure that recording artists and
record companies will be protected as new technologies affect
the ways in which their creative works are used; and second,
to create fair and efficient licensing mechanisms that address
the complex issues facing copyright owners and copyright users
as a result of the rapid growth of digital audio services.
This amendment accomplishes both of these objectives by
creating two statutory licenses for certain performances and
reproductions of sound recordings in the digital environment.
Section 405 amends section 114 by creating a
statutory license for certain nonsubscription and new
subscription transmissions. Subscription transmissions by
services providing service to customers on July 31, 1998,
remain subject to the statutory license created by the DPRSRA,
with certain exceptions. Section 405 also amends section 114
to clarify that certain types of programming practices should
be considered interactive and therefore subject to a sound
recording copyright owner's exclusive rights.
Section 405 also amends section 112 by
offering a statutory license for certain types of
reproductions made to facilitate transmissions subject to the
statutory licenses in section 114 or which qualify for certain
exemptions from a sound recording copyright owner's
performance right. Section 112 refers to such reproductions as
"ephemeral recordings." The statutory license
created by section 112(f) facilitates the licensing that is
necessary for the making of ephemeral recordings by Internet
music services.
TITLE V: PROTECTION OF
CERTAIN ORIGINAL DESIGNS
Title V of the DMCA, referred to as
"Vessel Hull Design Protection Act," provides new
sui generis protection for original boat hull designs for a
10-year term by adding a new chapter, Chapter 13, to Title 17
of the United States Code.
In Bonito Boats Inc. v. Thunder Craft Boats,
Inc.,54 the Supreme Court struck down, as preempted by federal
patent law, a Florida statute that had protected the design of
boat hulls against copying by means of making a mold from the
finished hull. Title V was proposed to address the concerns
raised by boat manufacturers and design firms in the wake of
that decision.
An application for registration of the
design would be a prerequisite to protection, and such
application would have to be made within two years of the date
the design was first made public.55 The owner of a registered
design would have the exclusive right to make, sell, import or
distribute for sale or for commercial use any hull embodying
the design.56 The DMCA would, however, exempt from liability
for infringement certain actions, including reproducing a
protected design "solely for the purpose of teaching,
analyzing, or evaluating the appearance, concepts, or
techniques embodied in the design, or the function of the
useful article embodying the design."57 In addition, a
distributor who sold a vessel hull embodying a protected
design would not be liable if the distributor did not know the
design was protected and copied.58 Also, as with copyright, no
liability would attach if the allegedly infringing hull was
designed independently - i.e., without copying the first hull.
Further, whenever any vessel hull embodying a protected design
was publicly exhibited or distributed, the hull would have to
carry a notice of the design's protection, and omission of the
notice would prevent the owner from recovering against a party
who infringes before receiving notice of the protection.59
1 I would like to thank Taro Isshiki and
Tony Reese for their assistance in the preparation of this
memorandum.
2 17 U.S.C. § 1201(a)(1) (1998). To "circumvent a
technological protection measure" means to "descramble
a scrambled work, to decrypt an encrypted work, or otherwise
avoid, bypass, remove, deactivate, or impair a technological
protection measure." A technological protection measure
"effectively controls access to a work" if the
measure, in the ordinary course of its operation, requires the
application of information, or process or treatment, with the
authority of the copyright owner, to gain access to the work.
17 U.S.C. § 1201(a)(3) (1998).
3 The Library of Congress is required to conduct additional
rulemakings every three years after this initial rulemaking.
4 17 U.S.C. § 1201(a)(2), (b) (1998).
5 17 U.S.C. § 1201(c)(1), (c)(2) (1998).
6 17 U.S.C. § 1201(c)(3) (1998).
7 17 U.S.C. § 1201(f) (1998).
8 17 U.S.C. § 1201(e) (1998).
9 17 U.S.C. § 1201(g) (1998).
10 17 U.S.C. § 1201(g)(2) (1998).
11 17 U.S.C. § 1201(g)(3) (1998).
12 17 U.S.C. § 1201(j) (1998).
13 17 U.S.C. § 1201(j)(1) (1998).
14 17 U.S.C. § 1201(j)(3) (1998).
15 17 U.S.C. § 1201(j)(4) (1998).
16 17 U.S.C. § 1201(i) (1998).
17 17 U.S.C. § 1201(d) (1998).
18 Section 402 of the DMCA, discussed below, also provides
broadcasters with an exception to the circumvention
prohibition when necessary to make permitted ephemeral
reproductions.
19 17 U.S.C. § 1201(k) (1998).
20 17 U.S.C. § 1202(a) (1998).
21 17 U.S.C. § 1202(b) (1998).
22 17 U.S.C. § 1202(c) (1998).
23 17 U.S.C. § 1202(e) (1998).
24 17 U.S.C. § 1202(e)(1) (1998).
25 17 U.S.C. § 1202(e)(2)(A) (1998).
26 17 U.S.C. § 1203(e)(2)(B) (1998).
27 17 U.S.C. § 1203(a) (1998).
28 17 U.S.C. § 1203(b) (1998).
29 17 U.S.C. § 1203(c)(4) (1998).
30 17 U.S.C. § 1203(c)(5) (1998).
31 17 U.S.C. § 1204(a) (1998).
32 17 U.S.C. § 1204(b) (1998).
33 17 U.S.C. § 512(k)(1) (1998).
34 The House Judiciary Committee Report explains that the
definition includes "services such as providing Internet
access, e-mail, chat room and web page hosting...." Thus,
a company which maintains an Intranet for its employees may be
a service provider under the statute. Similarly, a company
which maintains a bulletin board where customers can post
comments concerning the company's products may qualify as a
service provider.
35 17 U.S.C. § 512(l) (1998).
36 17 U.S.C. § 512(n) (1998).
37 17 U.S.C. § 1203(i)(1)(A) (1998).
38 17 U.S.C. § 512(i)(2) (1998).
39 17 U.S.C. § 512(m) (1998).
4 17 U.S.C. § 512(c), (d) (1998).
41 17 U.S.C. § 512(c)(1), (d) (1998). The Committee Reports
contain examples of what constitutes actual knowledge or
awareness of circumstances from which infringing activity is
apparent.
42 17 U.S.C. § 512(b) (1998).
43 17 U.S.C. § 512(b) (1998).
44 17 U.S.C. § 512(a) (1998).
45 17 U.S.C. § 512(j) (1998).
46 17 U.S.C. § 512(c)(2) (1998).
47 17 U.S.C. § 512(c)(3) (1998).
48 17 U.S.C. § 512(f) (1998).
49 17 U.S.C. § 512(h) (1998).
50 17 U.S.C. § 512(g) (1998).
51 17 U.S.C. § 512(f) (1998).
52 17 U.S.C. § 512(g)(2) (1998).
53 991 F.2d 511 (9th Cir. 1993).
54 489 U.S. 141 (1989).
55 17 U.S.C. § 1310 (1998).
56 17 U.S.C. § 1308 (1998).
57 17 U.S.C. § 1309(g) (1998).
58 17 U.S.C. § 1309(b) (1998).
59 17 U.S.C. § 1306, 1307 (1998).
_____
DMCA's Legislative
History -- The WIPO Legislation
This section chronicles, through public
documents, testimony, press releases, and floor
statements, passage of the Digital Millennium Copyright Act to
update U.S. copyright law in preparation for implementing the
World Intellectual Property Organization Treaties.
105th Congress - WIPO Legislation
Final Text of the Digital Millennium
Copyright Act as passed by the 105th Congress:
H.R.
2281, the Digital Millennium Cpyright Act --Enrolled (final)
version. Due to its size the bill is only available as
an Adobe .pdf file. You will need the Adobe
Acrobat reader to view this document. Get
the Adobe Acrobat Reader Free from Adobe!
Final Conference Report:
Conference
report on the Digital Millennium Copyright Act
Remarks by the President at the signing if
the DMCA:
The
President´s Remarks--October 28, 1998
Remarks by Senators about final
passage of the DMCA:
Sen
Leahy´s remarks on House delays in the passage of the
Digital Millennium Copyright Act Conference Report --
October 20, 1998
Sen.
Hatch´s Remarks on U.S. House passage of the Digital
Millennium Copyright Act -- October 12, 1998
Senate
Floor Remarks on the Digital Millennium Copyright Act
Conference Report -- October 8, 1998
Remarks by Congressional Representatives
about final passage of the DMCA:
Remarks
of Rep. Bliley concerning the DMCA -- Ocotber 13, 1998
Remarks
of Rep. Tauzin concerning the DMCA and Fair Use -- October
12, 1998
Remarks
of Rep. Boucher concerning the DMCA and Circumvention --
October 12, 1998
Remarks
of Rep. Morella concerning the DMCA and Distance Learning --
October 12, 1998
H.R. 2281 and S. 2037 (S. 1121 was
abandonded with passage of S. 2037)
WIPO Treaties Implementation Act
Text of H.R.
2281 and S.2037
Statements in Congressional Record on H.R.
2281 and S. 2037
Introductory
Remarks of Senator Hatch, Senator Leahy and Senator Kohl.
(Link will take you to THOMAS index for July 31, 1997
Congressional Record - scroll halfway down page for WIPO
Implementation Act and links to statements.)
Bill Summary & Status of H.R.
2281and S. 2037
WIPO
Treaties Transmittal Letter - July 28, 1997
In addition, read an analysis of the Digital
Millenium Copyright Act by Jonathan Band (Summary
and Index/Full
Memo).
Link to the HRRC's
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