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DMCA
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105th
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October 28 , 1998
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Pub L 105-304
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http://thomaslocgov/cgi-bin/toGPO/http://frwebgateaccessgpogov/cgi-bin/getdoccgidbname=105_cong_public_laws&docid=f:publ304105pdf
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112 Stat 2860 (1998)
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Copyright Act Of 1976
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5 (Government Organization and Employees) 17 (Copyrights) 28 (Judiciary and Judicial Procedure) 35 (Patents)
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17 USC §§ 512, 1201–1205, 1301–1332 28 USC § 4001
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17 USC §§ 101, 104, 104A, 108, 112, 114, 117, 701
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http://thomaslocgov/cgi-bin/bdquery/zd105:HR02281:@@@X
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House Of Representatives
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HR 2281
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Rep Howard Coble ( R - NC )
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July 29 , 1997
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House Judiciary Committee (Subcommittee on Courts and Intellectual Property) House Commerce Committee (Subcommittee on Telecommunications, Trade, and Consumer Protection)
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House
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August 4 , 1998
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voice vote
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Senate
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September 17 , 1998
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unanimous consent
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October 8 , 1998
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Senate
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October 8 , 1998
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unanimous consent
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House
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October 12 , 1998
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voice vote
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Clinton
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October 28 , 1998
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None
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The ('''DMCA''') is a
United States Copyright Law which implements two 1996
measures that control access to copyrighted works (commonly known as
DRM ) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself. It also heightens the penalties for copyright infringement on the
Internet . Passed on
October 8 ,
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
U.S. Code to extend the reach of copyright, while limiting the liability of Online Providers from
Copyright Infringement by their users.
On
May 22 ,
2001 , the
European Union passed the
EU Copyright Directive or EUCD, similar in many ways to the DMCA.
DMCA Title I, the
WIPO Copyright And Performances And Phonograms Treaties Implementation Act has two major portions, one of which includes works covered by several treaties in US copy prevention laws and gave the title its name and the other which is often known as the DMCA anti-circumvention provisions. The latter changed the remedies for the circumvention of copy prevention systems and required that all analog video recorders have support for a specific form of copy prevention commonly known as
Macrovision built in. However, section 1201(c) of the title clarified that the title does not change the underlying substantive copyright infringement rights, remedies, or defenses. The title contains other limitations and exemptions, including for research and reverse engineering in specified situations. For further analysis of this portion of the Act and of cases under it, see
WIPO Copyright And Performances And Phonograms Treaties Implementation Act .
DMCA Title II, the
Online Copyright Infringement Liability Limitation Act ("OCILLA") creates a
Safe Harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if the material upon notice from such users claiming that the material in question is not, in fact, infringing. OCILLA also provides for
Subpoena s to OSPs to provide their users' identity.
DMCA Title III modified
section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer.
DMCA Title IV contains an assortment of provisions:
- Clarified and added to the duties of the Copyright Office.
- Added ephemeral copy for broadcasters provisions, including certain Statutory License s.
- Added provisions to facilitate distance education.
- Added provisions to assist libraries with keeping copies of sound recordings.
- Added provisions relating to collective bargaining and the transfer of movie rights.
DMCA Title V added sections
1301 through
1332 to add a ''
Sui Generis '' protection for boat hull designs. Boat hull designs are not covered under copyright law, because they are useful articles whose form cannot be cleanly separated from their function.
In addition to the safe harbors and exemptions the statute explicitly provides,
17 U.S.C. 1201(a)(1) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make noninfringing uses of copyrighted works.
The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle. Consequently, the exemptions issued in the prior rulemakings, in 2000 and 2003, are no longer valid.
The current administratively-created
exemptions , issued in November 2006, are:
- Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors. (A new exemption in 2006.)
- Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. (A renewed exemption, first approved in 2003.)
- Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. (Revised from a similar exemption approved in 2003.)
- 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 either of the book’s read-aloud function or of screen readers that render the text into a specialized format. (Revised from a similar exemption approved in 2003.)
- Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network. (A new exemption in 2006.)
- Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities. (A new exemption in 2006.)
The Copyright Office approved two exemptions in 2000 and four in 2003. In 2000, the Office exempted (a) "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and (b) "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness." (revised and limited in 2003 and again in 2006). In 2003, the 2000 "literary works including computer programs" exemption was limited to "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete." 2003 also added an ebook exemption for text readers and an obsolete software and video game format exemptions, both of which were renewed in 2006. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006.''See'' U.S. Copyright Office, Oct. 27, 2000, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, at http://www.copyright.gov/1201/anticirc.html ; U.S. Copyright Office, Oct. 28, 2003, Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, at http://www.copyright.gov/1201/2003/index.html .
There are efforts in Congress to modify the Act.
Rick Boucher , a Democratic congressman from Virginia, is leading one of these efforts by introducing the
Digital Media Consumers' Rights Act (DMCRA).
A prominent bill related to the DMCA is the
Consumer Broadband And Digital Television Promotion Act (CBDTPA), known in early drafts as the Security Systems and Standards Certification Act (SSSCA). This bill, if it had passed, would have dealt with the devices used to access digital content and would have been even more restrictive than the DMCA.
Timothy B. Lee, in a paper written for the
Cato Institute , wrote:
:The DMCA is anti-competitive. It gives copyright holders — and the technology companies that distribute their content — the legal power to create
Closed Technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop
Pirate s.
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The DMCA has been criticized for forcing all companies producing analog video equipment to support the proprietary copy protection technology of a particular commercial firm (
Macrovision ). The producers of video equipment are forced by law to support the Macrovision technology to the financial benefit of Macrovision whereas those who build the video equipment get nothing in compensation.
An author notes that a company or individual infringed his or her copyright in publishing material without receiving their permission first, paying a fee or crediting the source of the information (plagiarism). If the author cannot find an arrangement with the offender he can address a DMCA to the provider hosting the user website. This text contains several items to respond to. It can be sent by fax, ordinary postal mail or even put on a website at the disposal of the provider. Not all providers accept receipt of the DMCA as scanned and signed images by email. Here is the template of the DMCA request that the author has to fill in and send to the alleged infringer:
In this context the DMCA does not require the complete postal address and private phone number of the author. Therefore, most companies do not list these two items in their policies (
Google ,
Blogger ) and only need an email of contact in respect with the spirit of the law.
Only a few companies require the author to mention his complete address and phone number (
Go Daddy Software ).
The postal address and phone number will only be required in cases of counter notification emitted by the offender or if the author initiates a legal proceeding.
See Also: Digital Rights Management
The DMCA has had an impact on the worldwide , who has declined to publish information about vulnerabilities he discovered in an
Intel secure-computing scheme because of his concern about being arrested under the DMCA when he travels to the US.
''Proposed US legislation:''
''Related non-US law:''
''DMCA anti-circumvention cases'':
''DMCA notice-and-takedown issues'':
