Digital Millennium Copyright Act

The Digital Millennium Copyright Act is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization. It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 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 United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.
The DMCA's principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries. This exemption was adopted by the European Union in the Electronic Commerce Directive 2000. The Information Society Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

Background and legislative history

The Digital Millennium Copyright Act had its basis as part of the United States' commitment to comply with two treaties passed by the World Intellectual Property Organization in December 1996 that dealt with the nature of copyright with modern information systems such as the Internet. The WIPO Copyright Treaty identified numerous electronic works as eligible for copyright protection, and stated that circumvention of technological measures used to secure electronic works was to be prohibited. The WIPO Performances and Phonograms Treaty worked to normalize the copyright protections for performed works as uniformly for member states as possible.
The process of ratifying the treaties for the United States was the first major piece of copyright-related legislation since the Copyright Act of 1976, and led to numerous interested groups to express concerns for how the treaties should be implemented, including content producers and distributors, technology manufacturers, online service providers, researchers and academics, and consumer groups. Some groups urged for stronger copyright enforcement while others sought more relaxing of rules. As the bill was being formed in the Commerce Committee in the House of Representatives, the committee recognized that the final bill would be far more encompassing than just copyright reform but would be establishing key principles in the digital commerce marketplace.
In evaluating the enforcement of the WIPO Copyright Treaty with its anti-circumvention provisions with U.S. copyright law, lawmakers recognized that traditionally copyright law did not generally account for the medium of the work, as it was generally impossible to make an exact copy of an analog work previously, and current law was only concerned with unlawful acts of copyright violations. Since digital technology could allow for infinite numbers of exact copies of works to be made, the lawmakers agreed they had to extend copyright to include limits on devices and services which could be used for circumvention in addition to acts of circumvention. In establishing this, the lawmakers also recognized this would have a negative impact on fair use without exceptions, with electronic works potentially falling into the public domain but still locked beyond circumvention measures, but they also needed to balance the rights of copyright holders. The DMCA as passed contained some basic fair use allowance such as for limited reverse engineering and for security research. Lawmakers opted to create a rulemaking mechanism through the United States Copyright Office to review the state of copyrights and fair use to make limited classes of allowance for fair use which would be considered lawful means of using circumvention technology.

Provisions

Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, amends U.S. copyright law to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.
The second portion is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems. The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations. Although section 1201 of the title stated that the section does not change the underlying substantive copyright infringement rights, remedies, or defenses, it did not make those defenses available in circumvention actions. The section does not include a fair use exemption from criminality nor a scienter requirement, so criminal liability could attach to even unintended circumvention for legitimate purposes.

Title II: Online Copyright Infringement Liability Limitation Act

DMCA Title II, the Online Copyright Infringement Liability Limitation Act, creates a safe harbor for online service providers against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users' identity.

Title III: Computer Maintenance Competition Assurance Act

DMCA Title III modified of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer. It reversed the precedent set in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511.

Title IV: Miscellaneous Provisions

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 licenses.
Added provisions to facilitate distance education.
Added provisions to assist libraries with keeping phonorecords of sound recordings.
Added provisions relating to collective bargaining and the transfer of movie rights.
Title V: Vessel Hull Design Protection Act

DMCA Title V added sections through to add a sui generis protection for boat hull designs. Boat hull designs were not considered covered under copyright law because boats are useful articles whose form cannot be separated from their function as determined by the Supreme Court case Bonito Boats, Inc. v. Thunder Craft Boats, Inc..

Anti-circumvention exemptions

In addition to the safe harbors and exemptions the statute explicitly provides, 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 non-infringing uses of copyrighted works.
The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Register of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Register and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle.

Previous exemptions

The Copyright Office approved two exemptions in 2000 and approved the following numbers of exemptions and renewals of previous exemptions for the rest of the years: four in 2003, six in 2006, five in 2010, five in 2012, ten in 2015, eighteen in 2018, twenty-six in 2021, and twenty in 2024.

2000 rulemaking

In 2000, the first rulemaking, the Office exempted:

"Compilations consisting of lists of websites blocked by filtering software applications" ; and
"Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness.".
2003 rulemaking

In 2003, the Office made the following rules:

The 2000 filtering exemption was revised and renewed.
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" and this exemption was renewed in both 2006 and 2010.
A new exemption was implemented for electronic books for which technological protection measures prevented the use of read-aloud software or screen readers. This exemption was renewed in 2006, 2010, 2012, and 2015.
A new exemption was made for "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." This exemption was renewed in 2006 but not in 2010.
2006 rulemaking

In 2006, the Office made the following rules:

The 2003 exemption on obsolete computer programs and video games was renewed.
The 2003 exemption on computer programs protected by dongles was renewed.
The 2003 exemption on electronic books was renewed.
A new exemption was made for sound recordings allowed after security flaws were found in a copy protection system on some Sony CDs; this was not renewed in 2010.
A new exemption was implemented covering the audiovisual works included in the educational library of a college or university's film or media studies department; this was not renewed in 2010.
A new exemption was implemented allowing circumvention to allow wireless telephone handsets to connect to wireless networks. This exemption was revised in 2010 to specify used handsets and require authorization from the wireless network operator. Another exemption for wireless handsets was introduced in 2010 specific to interoperability software on the phone itself.