What is DMCA?

The Digital Millennial Copyright Act, while aiming to protect the use of intellectual property, has been criticized due to being abused by businesses competing against each other.

An overview

The DMCA or the Digital Millennium Copyright Act is a copyright law enacted in the United States of America. The prime purpose of this law is to implement two treaties, established in 1996, of the World Intellectual Property Organization (WIPO). The main aim of the law was to prohibit and prevent the circumvention of the copyright laws that had been enacted in the United States. Opinions regarding the law have diverged significantly since its inception, with some praising it while others have vocally condemned it.

Provisions of the DMCA

The Digital Millennium Copyright Act has 5 main titles whose primary purpose is, as mentioned earlier, to implement the treaties of WIPO.

Title 1: WIPO Copyright and Performances and Phonograms Treaties Implementation Act

This title has been integral in amending the copyright law in the United States to conform to the WIPO Copyright Treaty. There are two portions to this title, with the first portion covering most of the work that has already been incorporated into US copyright law.

On the other hand, the second portion, also popularly known as the DMCA anti-circumvent provision, aim to change the manner in which copyright laws can be bypassed or circumvented, while also requiring any analog video recorders to support a  particular form created by Macrovision, hence giving Macrovision a monopoly in this sector.

The title further provided exemptions for specific actions such as reverse engineering or government research. On the other hand, even though it stated that there would be no changes to the remedies available in case of copyright infringement, such defenses were deemed unavailable to those who bypassed or circumvented the copyright laws.

Title II: Online Copyright Infringement Liability Limitation Act

This title aims to provide safety from copyright infringement to online service providers, with the stipulation that they are required to meet some strict guidelines issued under this Act.  Such requirements include immediately blocking any access to the offensive material after receiving a complaint from the original copyright holder. This title also allows issuing subpoenas against the relevant online service providers in order to force them to provide the identity of their users.

Title III: Computer Maintenance Competition Assurance Act

This title allows safe passage to technicians who make their living repairing computers. The title amended section 117 of the copyright title in order to allow those who repair computers to make limited and temporary copies in order to be able to work on the computer. This title actually served to reverse the precedent which had been set in MAI Systems Corp. v. Peak Computer, Inc., (1993).

Title IV: Miscellaneous Provisions

This title deals with various provisions, which include:

  • Specific statutory licenses being added for broadcaster provisions, amongst other provisions.
  • Adding specific provisions that would help and enable long distance education and learning.
  • Added further duties to the Copyright Office while also further explaining and clarifying its provisions.
  • Introduced provisions that were integral in allowing libraries to keep phonorecords of any sound recordings.
  • Introduced and added further provisions which were related to transfers of rights to movies and collective bargaining.
Title V: Vessel Hull Design Protection Act

Title V of the DMCA added a total of 32 sections (1301-1332) in order to be able to add a sui generis (of its own kind) protection, specifically for hull designs of boats. Previously, boat hull designs were considered to not be covered under copyright as they were classified as useful articles where the form could not be properly separated from their function.

Exemptions to anti-circumvention of copyright law

While the statute itself defines several exemptions and safe passage, the law also requires the Librarian of Congress to issue additional exemptions from the prohibition of acts that aim to circumvent or bypass access-control technology. Such exemptions are only granted if the prohibition of the circumvention of control-access technology can be proven to have a negative effect on the people’s ability to make use of copyright work in a manner that does not infringe the copyright.

The rules that govern these exemptions are revised and revisited every three years. The Registrar of Copyrights submits such exemption proposals to the public, and after public comments as well as hearings, the Registrar issues his final recommendation which is then approved by the Librarian.

Controversy and criticism surrounding DMCA

Overuse of takedown notices

This criticism has been launched by Google at the DMCA, with a study in 2005 showing that more than half of the takedown notices issued were against competing businesses (57%) to be exact. Furthermore, of all the takedown notices Google received, more than one third were proven to be not valid at all.

Analog video equipment

The DMCA has also come under fire for making it mandatory to implement copy protection technology produced by Rovi Corporation (formerly Macrovision). This has led to a vast increase in the profits of the company while those who are forced to implement it receive no compensation in this regard.

Furthermore, there have been complaints that the analog copy protection created by Ravi Corporation often distort the video quality even if the recording is not a copy. The video quality is only supposed to be distorted if the recording is a copy.

Opposition towards the act

Throughout the years since the inception of the Act, there have been various Congressional attempts to modify the law. However, none have succeeded significantly.

The Electronic Frontier Foundation, on the tenth anniversary of the inauguration of the DCMA, released a list portraying the negativity caused by the Act. The criticism includes:

  • Prohibition of free expression. This was supported by the cases against Dmitry Sklyarov, a Russian programmer as well as Edward Felten, a professor at Cambridge.
  • A reduction in competition in the market. For example, the restrictions did not allow for aftermarket competition in garage door openers and toner cartridges amongst other products.
  • Interference of the DMCA with laws governing computer intrusion.
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