The federal Digital Millennium Copyright Act (DMCA), adopted as law in 1998, amended U.S. copyright laws. It incorporated the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 into the laws of the U.S. The goal of the DMCA is to address certain issues in the relationship between copyright and other intellectual property and the Internet.
The three most important changes are as follows:
- To establish protections for Internet service providers (ISPs) in certain situations in which users infringe on copyrights. This includes establishing the notice-and-takedown system, which allows intellectual property owners to inform ISPs of the presence of material that infringes on copyright, so it can be removed;
- To encourage the owners of copyrighted material to provide greater access to their works in digital format online by giving them legal protections against unauthorized access to their works. Unauthorized access would include such methods as hacking passwords or circumventing encryption;
- Making it illegal to provide false copyright management information, e.g., names of authors, copyright owners, and titles of works, or to remove or change that type of information in certain circumstances.
What Are Some of the Specific Provisions of This Act?
Of course, the main goal of the DMCA is protection of the intellectual property rights of a copyright holder on the Internet. Software piracy, or the infringement of copyrights that apply to software, is also covered by the DMCA. The main provisions protect an ISP and online service providers (OSPs) if their conduct meets the specific requirements of a safe harbor. If an ISP meets safe harbor requirements, it cannot be liable to pay money damages for copyright infringement to a copyright holder.
Injunctions to prevent future infringement are still a remedy that is available to a copyright holder under the DMCA.
The safe harbor for user provision states that OSPs must comply with and qualify for certain prescribed safe harbor guidelines. They must promptly block access to material posted that allegedly infringes on a copyright or remove the material from their system when they receive notification of an infringement from a copyright holder or their agent. This procedure is known as “notice and takedown.”
It also requires OSPs to designate an agent to receive notices from the owners of copyrights. They must further include the contact information for their agents on their websites and register their agents with the Copyright Office. In addition, the DMCA increases the punishment for copyright infringement on the Internet.
Section 1201 of the DMCA prohibits two specific activities. First, it prohibits circumventing technological protection measures (TPMs) used by copyright owners to control access to their copyrighted works. For example, bypassing a password-protected system designed to prevent unauthorized access to a streaming service is illegal under Section 1201.
It also prohibits the manufacture, importation, offering, providing, or trafficking of technologies that enable circumvention or any products that enable circumvention of TPMs.
Section 1202 makes it illegal to distribute false copyright management information (CMI) with the intent to either induce or conceal copyright infringement. Copyright management information is information conveyed in connection with copies, phonorecords, performances, or displays of work.
Section 1202 does not apply to certain specified activities of certain law enforcement, intelligence, or government agencies. Exemptions to its prohibitions are also given to certain analog and digital transmissions by broadcast stations or cable systems.
What Are the Penalties for Violations of the DMCA?
The DMCA authorizes both civil and criminal penalties for violations of its provisions. Intentional violations of the DMCA can result in the violator having to pay monetary damages or statutory damages, as well as serving a term of imprisonment.
In its civil penalty provisions, the DMCA allows the owners of copyrights to file lawsuits in federal district court. Federal courts have the authority to issue injunctions against offenders to prevent future infringements.
A court might order a person found liable for a civil violation to pay actual damages up to $2,500 per violation or statutory damages of as much as $25,000. The copyright owner may also be able to recover any profits from the person liable for a civil violation made from the infringement. In some cases, this can amount to many thousands of dollars.
An offender convicted of a second or subsequent offense may have to pay triple damages if they violate the DMCA within three years of a liability judgment. In one recent case, an offender who stole a photographer’s images and then used them on a company’s website was ordered to pay the photographer $1.6 million in damages.
Criminal penalties are also possible. As noted above, violators of copyright may have to pay large fines or even serve time in prison. An offender may have to pay fines of as much as $500,000 and serve as many as 5 years in jail or pay a fine and serve time in jail. Repeat offenders could be fined as much as $1,000,000 or serve a prison term of up to 10 years or both.
A criminal violation of the DMCA takes place when an offender intentionally violates the law for commercial or personal financial gain by doing such acts as selling “cracked” copies of software that are protected by copyright.
Finally, a federal court can seize property that it believes was used to violate the DMCA. If the offender is later found to have, in fact, violated the DMCA, the court can then order the destruction of their property. In addition, the government can seize or destroy any technology an offender has made use of to get around copyright protections or violate a copyright holder’s rights, such as CD and DVD burners, computers, and software disks.
A person who believes that any of their intellectual property rights, whether it is a copyright, patent, or trademark, can report the alleged violations to the federal Internet Crime Complaint Center (IC3). This federal agency is a partnership between the Federal Bureau of Investigation, the National White Collar Crime Center, and the Bureau of Justice Assistance in the Department of Justice.
The IC3 is the federal agency whose role is to receive and refer criminal complaints involving a variety of cybercrimes, including intellectual property crimes that take place online. Violations can be reported via its website at www.ic3.gov.
Are There Any Defenses to a Charge of Violating the DMCA?
As noted above, safe harbor is an avenue of defense. An OSP should investigate and comply with a takedown notice if it confirms that flagged content infringes on copyright. An OSP sometimes disables content or its monetization until a dispute generated by a notice is resolved.
The fair use doctrine is a defense to an allegation of copyright infringement that is often raised in these cases. The fair use doctrine allows a person to use copyrighted material without permission if the material fulfills certain criteria. In assessing fair use, a court looks at 4 factors as follows:
- The character of the use and its purpose, e.g., whether the use is commercial;
- The nature of the copyrighted work and whether the use made of it transforms it;
- The amount of the copyrighted work that is included in the use;
- The potential damage to the value of the original work caused by a new work that makes use of it.
Reportedly, the fair use doctrine is not often used when a DMCA claim is made. When a copyright holder appeals to an OSP, they might consider the fair use factors and restore the copyright holder’s content. But an OSP may just delete the content if there is doubt about whether the use is fair because they want to maintain their safe harbor status.
Do I Need the Help of a Lawyer for My Digital Copyright Issue?
If you are a copyright holder whose copyright has been infringed online, you want to consult a copyright lawyer. Your lawyer can analyze the facts of your case and inform you about the remedies you can pursue to protect your copyright. Your lawyer would also be able to advise you as to how you can report any possible criminal offense to the right law enforcement agency.
If you have been sued in connection with an online intellectual property violation, you need an intellectual property lawyer. They are able to advise you of any defenses you have available and help you avoid liability.
In either case, your lawyer can represent you in negotiations or at a federal trial if that should be necessary. Your lawyer is the one who is best equipped to protect your rights and interests.
