Live News

DMCA

Digital Millennium Copyright Act

The Digital Millennium Copyright Act
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), which amended U.S. copyright law to address important parts of the relationship between copyright and the internet. The three main updates were (1) establishing protections for online service providers in certain situations if their users engage in copyright infringement, including by creating the notice-and-takedown system, which allows copyright owners to inform online service providers about infringing material so it can be taken down; (2) encouraging copyright owners to give greater access to their works in digital formats by providing them with legal protections against unauthorized access to their works (for example, hacking passwords or circumventing encryption); and (3) making it unlawful to provide false copyright management information (for example, names of authors and copyright owners, titles of works) or to remove or alter that type of information in certain circumstances.

In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020, which established the Copyright Claims Board (CCB) within the U.S. Copyright Office. The CCB is a voluntary, alternative forum to federal court designed for all types of creators and users of copyrighted materials. Eligible claims include those for misrepresentations in notices or counter-notices under section 512 of the DMCA, as well as for copyright infringement and declarations of noninfringement.

Digital Millennium Copyright Act (DMCA), is a federal statute that addresses a number of copyright issues created by the use of new technology and the Internet including digital rights management (methods for stopping infringement), and certain rights and privileges (safe harbors) that protect Internet Service ProvidersPublic Law 105-304, was signed into law on October 29, 1998, by President Clinton to bring the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 into the laws of the United States. It combined four proposed bills as well as some other revisions to copyright law that were needed to fill-in gaps within U.S. law that the WIPO Copyright Treaty addressed. Some of the most important revisions in the DMCA increased protections against new methods of infringing copyrighted works, especially those through the internet. The DMCA, while recognized as making many needed changes to copyright laws, has been critiqued and increasingly so as being overprotective in different ways, including limiting the ability of consumers to use products they purchase. 

The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 added Chapter 12 to the DMCA. Copyright Protection and Management Systems, to the Copyright Act. While United States copyright law arguably met most of the provisions in the WIPO treatises, it did not address technological measures to help stop copyright infringement or other copyright management systems. The DMCA resolved that by first making it a violation to circumvent a technological measure to access a copyrighted work, and then making it a violation to traffic in devices whose purpose is to circumvent the technological measure to either access the work or otherwise infringe the copyright. There are a number of narrowly-tailored exceptions provided, as well as a triennial rulemaking by the Library of Congress to exempt classes of copyrighted works.

The Online Copyright Infringement Liability Limitation Act added Section 512 to the Copyright Act, providing four distinct safe harbors for online service providers. If the conduct of a service provider meets all the specific requirements of a safe harbor, the service provider will not be liable for monetary damages for copyright infringement, although injunctions to stop future infringement are possible. The safe harbor for user information residing on the service providers’ systems includes a “notice-takedown-putback” provision where the service provide takes down information after proper notice is received from the copyright owner alleging infringement, and can be restored if the user challenges the takedown after sufficient time to file a copyright infringement suit.

When most people refer to the DMCA, they are talking about one or both of those provisions. But it included many other things, some not even about digital information or copyright. The Vessel Hull Design Protection Act added Chapter 13 to Title 17. Although not a copyright provision, it gave the Copyright Office a new role in protecting an “original design of a useful article” (where “useful article” is limited to boat hulls). It was intended to replace the state law struck down by the Supreme Court in Bonito Boats, Inc. v. Thunder Craft Boats, Inc.

With the Computer Maintenance Competition Assurance Act, the DMCA also broadened Section 117 of the Copyright Act to allow third-party maintenance organizations to used software licensed to a computer’s owner or lessee as part of their maintenance activities, overriding the Ninth Circuit’s 1993 decision in MAI v. Peak.

The DMCA also contained a number of miscellaneous changes to copyright law, including an update to the Section 108 exemptions for libraries and archives.

[Last updated in February of 2022 by the Wex Definitions Team]

Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). 1
Copyright Office Summary December 1998 Page 1
THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998
U.S. Copyright Office Summary
December 1998
INTRODUCTION
The Digital Millennium Copyright Act (DMCA) was signed into law by
1
President Clinton on October 28, 1998. The legislation implements two 1996 World
Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and
the WIPO Performances and Phonograms Treaty. The DMCA also addresses a
number of other significant copyright-related issues.
The DMCA is divided into five titles:
! Title I, the “WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998,” implements the WIPO
treaties.
! Title II, the “Online Copyright Infringement Liability Limitation
Act,” creates limitations on the liability of online service providers for
copyright infringement when engaging in certain types of activities.
! Title III, the “Computer Maintenance Competition Assurance
Act,” creates an exemption for making a copy of a computer program
by activating a computer for purposes of maintenance or repair.
! Title IV contains six miscellaneous provisions, relating to the
functions of the Copyright Office, distance education, the exceptions
in the Copyright Act for libraries and for making ephemeral recordings,
“webcasting” of sound recordings on the Internet, and the applicability
of collective bargaining agreement obligations in the case of transfers
of rights in motion pictures.
! Title V, the “Vessel Hull Design Protection Act,” creates a new form
of protection for the design of vessel hulls.
This memorandum summarizes briefly each title of the DMCA. It provides
merely an overview of the law’s provisions; for purposes of length and readability a
significant amount of detail has been omitted. A complete understanding of any
provision of the DMCA requires reference to the text of the legislation itself.
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 2
TITLE I: WIPO TREATY IMPLEMENTATION
Title I implements the WIPO treaties. First, it makes certain technical
amendments to U.S. law, in order to provide appropriate references and links to the
treaties. Second, it creates two new prohibitions in Title 17 of the U.S. Code—one on
circumvention of technological measures used by copyright owners to protect their
works and one on tampering with copyright management information—and adds civil
remedies and criminal penalties for violating the prohibitions. In addition, Title I
requires the U.S. Copyright Office to perform two joint studies with the National
Telecommunications and Information Administration of the Department of
Commerce (NTIA).
Technical Amendments
National Eligibility
The WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT) each require member countries to provide protection to
certain works from other member countries or created by nationals of other member
countries. That protection must be no less favorable than that accorded to domestic
works.
Section 104 of the Copyright Act establishes the conditions of eligibility for
protection under U.S. law for works from other countries. Section 102(b) of the
DMCA amends section 104 of the Copyright Act and adds new definitions to section
101 of the Copyright Act in order to extend the protection of U.S. law to those works
required to be protected under the WCT and the WPPT.
Restoration of Copyright Protection
Both treaties require parties to protect preexisting works from other member
countries that have not fallen into the public domain in the country of origin through
the expiry of the term of protection. A similar obligation is contained in both the
Berne Convention and the TRIPS Agreement. In 1995 this obligation was implemented in the Uruguay Round Agreements Act, creating a new section 104A in the
Copyright Act to restore protection to works from Berne or WTO member countries
that are still protected in the country of origin, but fell into the public domain in the
United States in the past because of a failure to comply with formalities that then
existed in U.S. law, or due to a lack of treaty relations. Section 102(c) of the DMCA
amends section 104A to restore copyright protection in the same circumstances to
works from WCT and WPPT member countries.
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 3
Registration as a Prerequisite to Suit
The remaining technical amendment relates to the prohibition in both treaties
against conditioning the exercise or enjoyment of rights on the fulfillment of
formalities. Section 411(a) of the Copyright Act requires claims to copyright to be
registered with the Copyright Office before a lawsuit can be initiated by the copyright
owner, but exempts many foreign works in order to comply with existing treaty
obligations under the Berne Convention. Section 102(d) of the DMCA amends section
411(a) by broadening the exemption to cover all foreign works.
Technological Protection and Copyright Management Systems
Each of the WIPO treaties contains virtually identical language obligating
member states to prevent circumvention of technological measures used to protect
copyrighted works, and to prevent tampering with the integrity of copyright
management information. These obligations serve as technological adjuncts to the
exclusive rights granted by copyright law. They provide legal protection that the
international copyright community deemed critical to the safe and efficient exploitation
of works on digital networks.
Circumvention of Technological Protection Measures
General approach
Article 11 of the WCT states:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used
by authors in connection with the exercise of their
rights under this Treaty or the Berne Convention and
that restrict acts, in respect of their works, which are
not authorized by the authors concerned or permitted
by law.
Article 18 of the WPPT contains nearly identical language.
Section 103 of the DMCA adds a new chapter 12 to Title 17 of the U.S. Code.
New section 1201 implements the obligation to provide adequate and effective
protection against circumvention of technological measures used by copyright owners
to protect their works.
Section 1201 divides technological measures into two categories: measures that
prevent unauthorized access to a copyrighted work and measures that prevent
The Digital Millennium Copyright Act of 1998
“Copying” is used in this context as a short-hand for the exercise of any of the exclus- 2
ive rights of an author under section 106 of the Copyright Act. Consequently, a technological
measure that prevents unauthorized distribution or public performance of a work would fall
in this second category.
Copyright Office Summary December 1998 Page 4
unauthorized copying of a copyrighted work. Making or selling devices or services that 2
are used to circumvent either category of technological measure is prohibited in certain
circumstances, described below. As to the act of circumvention in itself, the provision
prohibits circumventing the first category of technological measures, but not the
second.
This distinction was employed to assure that the public will have the continued
ability to make fair use of copyrighted works. Since copying of a work may be a fair use
under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying. By contrast, since the fair use
doctrine is not a defense to the act of gaining unauthorized access to a work, the act of
circumventing a technological measure in order to gain access is prohibited.
Section 1201 proscribes devices or services that fall within any one of the
following three categories:
! they are primarily designed or produced to circumvent;
! they have only limited commercially significant purpose or use other
than to circumvent; or
! they are marketed for use in circumventing.
No mandate
Section 1201 contains language clarifying that the prohibition on circumvention
devices does not require manufacturers of consumer electronics, telecommunications
or computing equipment to design their products affirmatively to respond to any
particular technological measure. (Section 1201(c)(3)). Despite this general ‘no
mandate’ rule, section 1201(k) does mandate an affirmative response for one particular
type of technology: within 18 months of enactment, all analog videocassette recorders
must be designed to conform to certain defined technologies, commonly known as
Macrovision, currently in use for preventing unauthorized copying of analog
videocassettes and certain analog signals. The provision prohibits rightholders from
applying these specified technologies to free television and basic and extended basic tier
cable broadcasts.
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 5
Savings clauses
Section 1201 contains two general savings clauses. First, section 1201(c)(1)
states that nothing in section 1201 affects rights, remedies, limitations or defenses to
copyright infringement, including fair use. Second, section 1201(c)(2) states that
nothing in section 1201 enlarges or diminishes vicarious or contributory copyright
infringement.
Exceptions
Finally, the prohibitions contained in section 1201 are subject to a number of
exceptions. One is an exception to the operation of the entire section, for law
enforcement, intelligence and other governmental activities. (Section 1201(e)). The
others relate to section 1201(a), the provision dealing with the category of technological
measures that control access to works.
The broadest of these exceptions, section 1201(a)(1)(B)-(E), establishes an
ongoing administrative rule-making proceeding to evaluate the impact of the
prohibition against the act of circumventing such access-control measures. This
conduct prohibition does not take effect for two years. Once it does, it is subject to
an exception for users of a work which is in a particular class of works if they are or are
likely to be adversely affected by virtue of the prohibition in making noninfringing uses.
The applicability of the exemption is determined through a periodic rulemaking by the
Librarian of Congress, on the recommendation of the Register of Copyrights, who is
to consult with the Assistant Secretary of Commerce for Communications and
Information.
The six additional exceptions are as follows:

  1. Nonprofit library, archive and educational institution exception
    (section 1201(d)). The prohibition on the act of circumvention of
    access control measures is subject to an exception that permits
    nonprofit libraries, archives and educational institutions to circumvent
    solely for the purpose of making a good faith determination as to
    whether they wish to obtain authorized access to the work.
  2. Reverse engineering (section 1201(f)). This exception permits
    circumvention, and the development of technological means for such
    circumvention, by a person who has lawfully obtained a right to use a
    copy of a computer program for the sole purpose of identifying and
    analyzing elements of the program necessary to achieve interoperability
    with other programs, to the extent that such acts are permitted under
    copyright law.
  3. Encryption research (section 1201(g)). An exception for encryption
    research permits circumvention of access control measures, and the
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 6
    development of the technological means to do so, in order to identify
    flaws and vulnerabilities of encryption technologies.
  4. Protection of minors (section 1201(h)). This exception allows a court
    applying the prohibition to a component or part to consider the
    necessity for its incorporation in technology that prevents access of
    minors to material on the Internet.
  5. Personal privacy (section 1201(i)). This exception permits circumvention when the technological measure, or the work it protects, is capable
    of collecting or disseminating personally identifying information about
    the online activities of a natural person.
  6. Security testing (section 1201(j)). This exception permits circumvention of access control measures, and the development of technological
    means for such circumvention, for the purpose of testing the security
    of a computer, computer system or computer network, with the
    authorization of its owner or operator.
    Each of the exceptions has its own set of conditions on its applicability, which
    are beyond the scope of this summary.
    Integrity of Copyright Management Information
    Article 12 of the WCT provides in relevant part:
    Contracting Parties shall provide adequate and effective
    legal remedies against any person knowingly performing
    any of the following acts knowing, or with respect to
    civil remedies having reasonable grounds to know, that
    it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne
    Convention:
    (i) to remove or alter any electronic rights
    management information without authority;
    (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority,
    works or copies of works knowing that electronic rights
    management information has been removed or altered
    without authority.
    Article 19 of the WPPT contains nearly identical language.
    New section 1202 is the provision implementing this obligation to protect the
    integrity of copyright management information (CMI). The scope of the protection
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 7
    is set out in two separate paragraphs, the first dealing with false CMI and the second
    with removal or alteration of CMI. Subsection (a) prohibits the knowing provision or
    distribution of false CMI, if done with the intent to induce, enable, facilitate or conceal
    infringement. Subsection (b) bars the intentional removal or alteration of CMI without
    authority, as well as the dissemination of CMI or copies of works, knowing that the
    CMI has been removed or altered without authority. Liability under subsection (b)
    requires that the act be done with knowledge or, with respect to civil remedies, with
    reasonable grounds to know that it will induce, enable, facilitate or conceal an
    infringement.
    Subsection (c) defines CMI as identifying information about the work, the
    author, the copyright owner, and in certain cases, the performer, writer or director of
    the work, as well as the terms and conditions for use of the work, and such other
    information as the Register of Copyrights may prescribe by regulation. Information
    concerning users of works is explicitly excluded.
    Section 1202 is subject to a general exemption for law enforcement, intelligence
    and other governmental activities. (Section 1202(d)). It also contains limitations on the
    liability of broadcast stations and cable systems for removal or alteration of CMI in
    certain circumstances where there is no intent to induce, enable, facilitate or conceal
    an infringement. (Section 1202(e)).
    Remedies
    Any person injured by a violation of section 1201 or 1202 may bring a civil
    action in Federal court. Section 1203 gives courts the power to grant a range of
    equitable and monetary remedies similar to those available under the Copyright Act,
    including statutory damages. The court has discretion to reduce or remit damages in
    cases of innocent violations, where the violator proves that it was not aware and had
    no reason to believe its acts constituted a violation. (Section 1203(c)(5)(A)). Special
    protection is given to nonprofit libraries, archives and educational institutions, which
    are entitled to a complete remission of damages in these circumstances. (Section
    1203(c)(5)(B)).
    In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and
    for purposes of commercial advantage or private financial gain. Under section 1204
    penalties range up to a $500,000 fine or up to five years imprisonment for a first
    offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent
    offenses. Nonprofit libraries, archives and educational institutions are entirely
    exempted from criminal liability. (Section 1204(b)).
    The Digital Millennium Copyright Act of 1998
    The Fairness in Musical Licensing Act, Title II of Pub. L. No. 105-298, 112 Stat. 2827, 3
    2830-34 (Oct. 27, 1998) also adds a new section 512 to the Copyright Act. This duplication of
    section numbers will need to be corrected in a technical amendments bill.
    Copyright Office Summary December 1998 Page 8
    Copyright Office and NTIA Studies Relating to Technological Development
    Title I of the DMCA requires the Copyright Office to conduct two studies
    jointly with NTIA, one dealing with encryption and the other with the effect of
    technological developments on two existing exceptions in the Copyright Act. New
    section 1201(g)(5) of Title 17 of the U.S. Code requires the Register of Copyrights and
    the Assistant Secretary of Commerce for Communications and Information to report
    to the Congress no later than one year from enactment on the effect that the
    exemption for encryption research (new section 1201(g)) has had on encryption
    research, the development of encryption technology, the adequacy and effectiveness
    of technological measures designed to protect copyrighted works, and the protection
    of copyright owners against unauthorized access to their encrypted copyrighted works.
    Section 104 of the DMCA requires the Register of Copyrights and the Assistant
    Secretary of Commerce for Communications and Information to jointly evaluate (1)
    the effects of Title I of the DMCA and the development of electronic commerce and
    associated technology on the operation of sections 109 (first sale doctrine) and 117
    (exemption allowing owners of copies of computer programs to reproduce and adapt
    them for use on a computer), and (2) the relationship between existing and emergent
    technology and the operation of those sections. This study is due 24 months after the
    date of enactment of the DMCA.
    TITLE II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
    Title II of the DMCA adds a new section 512 to the Copyright Act to create 3
    four new limitations on liability for copyright infringement by online service providers.
    The limitations are based on the following four categories of conduct by a service
    provider:
  7. Transitory communications;
  8. System caching;
  9. Storage of information on systems or networks at direction of users;
    and
  10. Information location tools.
    New section 512 also includes special rules concerning the application of these
    limitations to nonprofit educational institutions.
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 9
    Each limitation entails a complete bar on monetary damages, and restricts the
    availability of injunctive relief in various respects. (Section 512(j)). Each limitation
    relates to a separate and distinct function, and a determination of whether a service
    provider qualifies for one of the limitations does not bear upon a determination of
    whether the provider qualifies for any of the other three. (Section 512(n)).
    The failure of a service provider to qualify for any of the limitations in section
    512 does not necessarily make it liable for copyright infringement. The copyright
    owner must still demonstrate that the provider has infringed, and the provider may still
    avail itself of any of the defenses, such as fair use, that are available to copyright
    defendants generally. (Section 512(l)).
    In addition to limiting the liability of service providers, Title II establishes a
    procedure by which a copyright owner can obtain a subpoena from a federal court
    ordering a service provider to disclose the identity of a subscriber who is allegedly
    engaging in infringing activities. (Section 512(h)).
    Section 512 also contains a provision to ensure that service providers are not
    placed in the position of choosing between limitations on liability on the one hand and
    preserving the privacy of their subscribers, on the other. Subsection (m) explicitly
    states that nothing in section 512 requires a service provider to monitor its service or
    access material in violation of law (such as the Electronic Communications Privacy Act)
    in order to be eligible for any of the liability limitations.
    Eligibility for Limitations Generally
    A party seeking the benefit of the limitations on liability in Title II must qualify
    as a “service provider.” For purposes of the first limitation, relating to transitory
    communications, “service provider” is defined in section 512(k)(1)(A) as “an entity
    offering the transmission, routing, or providing of connections for digital online
    communications, between or among points specified by a user, of material of the user’s
    choosing, without modification to the content of the material as sent or received.” For
    purposes of the other three limitations, “service provider” is more broadly defined in
    section 512(k)(l)(B) as “a provider of online services or network access, or the operator
    of facilities therefor.”
    In addition, to be eligible for any of the limitations, a service provider must
    meet two overall conditions: (1) it must adopt and reasonably implement a policy of
    terminating in appropriate circumstances the accounts of subscribers who are repeat
    infringers; and (2) it must accommodate and not interfere with “standard technical
    measures.” (Section 512(i)). “Standard technical measures” are defined as measures
    that copyright owners use to identify or protect copyrighted works, that have been
    developed pursuant to a broad consensus of copyright owners and service providers
    in an open, fair and voluntary multi-industry process, are available to anyone on
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 10
    reasonable nondiscriminatory terms, and do not impose substantial costs or burdens
    on service providers.
    Limitation for Transitory Communications
    In general terms, section 512(a) limits the liability of service providers in
    circumstances where the provider merely acts as a data conduit, transmitting digital
    information from one point on a network to another at someone else’s request. This
    limitation covers acts of transmission, routing, or providing connections for the
    information, as well as the intermediate and transient copies that are made automatically
    in the operation of a network.
    In order to qualify for this limitation, the service provider’s activities must meet
    the following conditions:
    ! The transmission must be initiated by a person other than the provider.
    ! The transmission, routing, provision of connections, or copying must
    be carried out by an automatic technical process without selection of
    material by the service provider.
    ! The service provider must not determine the recipients of the material.
    ! Any intermediate copies must not ordinarily be accessible to anyone
    other than anticipated recipients, and must not be retained for longer
    than reasonably necessary.
    ! The material must be transmitted with no modification to its content.
    Limitation for System Caching
    Section 512(b) limits the liability of service providers for the practice of
    retaining copies, for a limited time, of material that has been made available online by
    a person other than the provider, and then transmitted to a subscriber at his or her
    direction. The service provider retains the material so that subsequent requests for the
    same material can be fulfilled by transmitting the retained copy, rather than retrieving
    the material from the original source on the network.
    The benefit of this practice is that it reduces the service provider’s bandwidth
    requirements and reduces the waiting time on subsequent requests for the same
    information. On the other hand, it can result in the delivery of outdated information
    to subscribers and can deprive website operators of accurate “hit” information —
    information about the number of requests for particular material on a website — from
    which advertising revenue is frequently calculated. For this reason, the person making
    the material available online may establish rules about updating it, and may utilize
    technological means to track the number of “hits.”
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 11
    The limitation applies to acts of intermediate and temporary storage, when
    carried out through an automatic technical process for the purpose of making the
    material available to subscribers who subsequently request it. It is subject to the
    following conditions:
    ! The content of the retained material must not be modified.
    ! The provider must comply with rules about “refreshing” material—replacing retained copies of material with material from the
    original location— when specified in accordance with a generally
    accepted industry standard data communication protocol.
    ! The provider must not interfere with technology that returns “hit”
    information to the person who posted the material, where such
    technology meets certain requirements.
    ! The provider must limit users’ access to the material in accordance with
    conditions on access (e.g., password protection) imposed by the person
    who posted the material.
    ! Any material that was posted without the copyright owner’s authorization must be removed or blocked promptly once the service provider
    has been notified that it has been removed, blocked, or ordered to be
    removed or blocked, at the originating site.
    Limitation for Information Residing on Systems or Networks at the
    Direction of Users
    Section 512(c) limits the liability of service providers for infringing material on
    websites (or other information repositories) hosted on their systems. It applies to
    storage at the direction of a user. In order to be eligible for the limitation, the
    following conditions must be met:
    ! The provider must not have the requisite level of knowledge of the
    infringing activity, as described below.
    ! If the provider has the right and ability to control the infringing activity,
    it must not receive a financial benefit directly attributable to the
    infringing activity.
    ! Upon receiving proper notification of claimed infringement, the
    provider must expeditiously take down or block access to the material.
    In addition, a service provider must have filed with the Copyright Office a
    designation of an agent to receive notifications of claimed infringement. The Office
    provides a suggested form for the purpose of designating an agent
    (http://www.loc.gov/copyright/onlinesp/) and maintains a list of agents on the
    Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/).
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 12
    Under the knowledge standard, a service provider is eligible for the limitation
    on liability only if it does not have actual knowledge of the infringement, is not aware
    of facts or circumstances from which infringing activity is apparent, or upon gaining
    such knowledge or awareness, responds expeditiously to take the material down or
    block access to it.
    The statute also establishes procedures for proper notification, and rules as to
    its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright
    owner submits a notification under penalty of perjury, including a list of specified
    elements, to the service provider’s designated agent. Failure to comply substantially
    with the statutory requirements means that the notification will not be considered in
    determining the requisite level of knowledge by the service provider. If, upon receiving
    a proper notification, the service provider promptly removes or blocks access to the
    material identified in the notification, the provider is exempt from monetary liability.
    In addition, the provider is protected from any liability to any person for claims based
    on its having taken down the material. (Section 512(g)(1)).
    In order to protect against the possibility of erroneous or fraudulent
    notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the
    subscriber the opportunity to respond to the notice and takedown by filing a counter
    notification. In order to qualify for the protection against liability for taking down
    material, the service provider must promptly notify the subscriber that it has removed
    or disabled access to the material. If the subscriber serves a counter notification
    complying with statutory requirements, including a statement under penalty of perjury
    that the material was removed or disabled through mistake or misidentification, then
    unless the copyright owner files an action seeking a court order against the subscriber,
    the service provider must put the material back up within 10-14 business days after
    receiving the counter notification.
    Penalties are provided for knowing material misrepresentations in either a
    notice or a counter notice. Any person who knowingly materially misrepresents that
    material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred
    by the alleged infringer, the copyright owner or its licensee, or the service provider.
    (Section 512(f)).
    Limitation for Information Location Tools
    Section 512(d) relates to hyperlinks, online directories, search engines and the
    like. It limits liability for the acts of referring or linking users to a site that contains
    infringing material by using such information location tools, if the following conditions
    are met:
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 13
    ! The provider must not have the requisite level of knowledge that the
    material is infringing. The knowledge standard is the same as under the
    limitation for information residing on systems or networks.
    ! If the provider has the right and ability to control the infringing activity,
    the provider must not receive a financial benefit directly attributable to
    the activity.
    ! Upon receiving a notification of claimed infringement, the provider
    must expeditiously take down or block access to the material.
    These are essentially the same conditions that apply under the previous
    limitation, with some differences in the notification requirements. The provisions
    establishing safeguards against the possibility of erroneous or fraudulent notifications,
    as discussed above, as well as those protecting the provider against claims based on
    having taken down the material apply to this limitation. (Sections 512(f)-(g)).
    Special Rules Regarding Liability of Nonprofit Educational Institutions
    Section 512(e) determines when the actions or knowledge of a faculty member
    or graduate student employee who is performing a teaching or research function may
    affect the eligibility of a nonprofit educational institution for one of the four limitations
    on liability. As to the limitations for transitory communications or system caching, the
    faculty member or student shall be considered a “person other than the provider,” so
    as to avoid disqualifying the institution from eligibility. As to the other limitations, the
    knowledge or awareness of the faculty member or student will not be attributed to the
    institution. The following conditions must be met:
    ! the faculty member or graduate student’s infringing activities do not
    involve providing online access to course materials that were required
    or recommended during the past three years;
    ! the institution has not received more than two notifications over the
    past three years that the faculty member or graduate student was
    infringing; and
    ! the institution provides all of its users with informational materials
    describing and promoting compliance with copyright law.
    TITLE III: COMPUTER MAINTENANCE OR REPAIR
    Title III expands the existing exemption relating to computer programs in
    section 117 of the Copyright Act, which allows the owner of a copy of a program to
    make reproductions or adaptations when necessary to use the program in conjunction
    with a computer. The amendment permits the owner or lessee of a computer to make
    or authorize the making of a copy of a computer program in the course of maintaining
    or repairing that computer. The exemption only permits a copy that is made
    automatically when a computer is activated, and only if the computer already lawfully
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 14
    contains an authorized copy of the program. The new copy cannot be used in any
    other manner and must be destroyed immediately after the maintenance or repair is
    completed.
    TITLE IV: MISCELLANEOUS PROVISIONS
    Clarification of the Authority of the Copyright Office
    Section 401(b), adds language to section 701 of the Copyright Act confirming
    the Copyright Office’s authority to continue to perform the policy and international
    functions that it has carried out for decades under its existing general authority.
    Ephemeral Recordings for Broadcasters
    Section 112 of the Copyright Act grants an exemption for the making of
    “ephemeral recordings.” These are recordings made in order to facilitate a transmission. Under this exemption, for example, a radio station can record a set of songs and
    broadcast from the new recording rather than from the original CDs (which would
    have to be changed “on the fly” during the course of a broadcast).
    As it existed prior to enactment of the DMCA, section 112 permitted a
    transmitting organization to make and retain for up to six months (hence the term
    “ephemeral”) no more than one copy of a work if it was entitled to transmit a public
    performance or display of the work, either under a license or by virtue of the fact that
    there is no general public performance right in sound recordings (as distinguished from
    musical works).
    The Digital Performance Right in Sound Recordings Act of 1995 (DPRA)
    created, for the first time in U.S. copyright law, a limited public performance right in
    sound recordings. The right only covers public performances by means of digital
    transmission and is subject to an exemption for digital broadcasts (i.e., transmissions
    by FCC licensed terrestrial broadcast stations) and a statutory license for certain
    subscription transmissions that are not made on demand (i.e. in response to the specific
    request of a recipient).
    Section 402 of the DMCA expands the section 112 exemption to include
    recordings that are made to facilitate the digital transmission of a sound recording
    where the transmission is made under the DPRA’s exemption for digital broadcasts or
    statutory license. As amended, section 112 also permits in some circumstances the
    circumvention of access control technologies in order to enable an organization to
    make an ephemeral recording.
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 15
    Distance Education Study
    In the course of consideration of the DMCA, legislators expressed an interest
    in amending the Copyright Act to promote distance education, possibly through an
    expansion of the existing exception for instructional broadcasting in section 110(2).
    Section 403 of the DMCA directs the Copyright Office to consult with affected parties
    and make recommendations to Congress on how to promote distance education
    through digital technologies. The Office must report to Congress within six months
    of enactment.
    The Copyright Office is directed to consider the following issues:
    ! The need for a new exemption;
    ! Categories of works to be included in any exemption;
    ! Appropriate quantitative limitations on the portions of works that may
    be used under any exemption;
    ! Which parties should be eligible for any exemption;
    ! Which parties should be eligible recipients of distance education
    material under any exemption;
    ! The extent to which use of technological protection measures should
    be mandated as a condition of eligibility for any exemption;
    ! The extent to which the availability of licenses should be considered in
    assessing eligibility for any exemption; and
    ! Other issues as appropriate.
    Exemption for Nonprofit Libraries and Archives
    Section 404 of the DMCA amends the exemption for nonprofit libraries and
    archives in section 108 of the Copyright Act to accommodate digital technologies and
    evolving preservation practices. Prior to enactment of the DMCA, section 108
    permitted such libraries and archives to make a single facsimile (i.e., not digital) copy
    of a work for purposes of preservation or interlibrary loan. As amended, section 108
    permits up to three copies, which may be digital, provided that digital copies are not
    made available to the public outside the library premises. In addition, the amended
    section permits such a library or archive to copy a work into a new format if the
    original format becomes obsolete—that is, the machine or device used to render the
    work perceptible is no longer manufactured or is no longer reasonably available in the
    commercial marketplace.
    Webcasting Amendments to the Digital Performance Right in Sound
    Recordings
    As discussed above, in 1995 Congress enacted the DPRA, creating a
    performance right in sound recordings that is limited to digital transmissions. Under
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 16
    that legislation, three categories of digital transmissions were addressed: broadcast
    transmissions, which were exempted from the performance right; subscription
    transmissions, which were generally subject to a statutory license; and on-demand
    transmissions, which were subject to the full exclusive right. Broadcast transmissions
    under the DPRA are transmissions made by FCC-licensed terrestrial broadcast stations.
    In the past several years, a number of entities have begun making digital
    transmissions of sound recordings over the Internet using streaming audio technologies. This activity does not fall squarely within any of the three categories that were
    addressed in the DPRA. Section 405 of the DMCA amends the DPRA, expanding the
    statutory license for subscription transmissions to include webcasting as a new category
    of “eligible nonsubscription transmissions.”
    In addition to expanding the scope of the statutory license, the DMCA revises
    the criteria that any entity must meet in order to be eligible for the license (other than
    those who are subject to a grandfather clause, leaving the existing criteria intact). It
    revises the considerations for setting rates as well (again, subject to a grandfather
    clause), directing arbitration panels convened under the law to set the royalty rates at
    fair market value.
    This provision of the DMCA also creates a new statutory license for making
    ephemeral recordings. As indicated above, section 402 of the DMCA amends section
    112 of the Copyright Act to permit the making of a single ephemeral recording to
    facilitate the digital transmission of sound recording that is permitted either under the
    DPRA’s broadcasting exemption or statutory license. Transmitting organizations that
    wish to make more than the single ephemeral recording of a sound recording that is
    permitted under the outright exemption in section 112 are now eligible for a statutory
    license to make such additional ephemeral recordings. In addition, the new statutory
    license applies to the making of ephemeral recordings by transmitting organizations
    other than broadcasters who are exempt from the digital performance right, who are
    not covered by the expanded exemption in section 402 of the DMCA.
    Assumption of Contractual Obligations upon Transfers of Rights in
    Motion Pictures
    Section 416 addresses concerns about the ability of writers, directors and screen
    actors to obtain residual payments for the exploitation of motion pictures in situations
    where the producer is no longer able to make these payments. The guilds’ collective
    bargaining agreements currently require producers to obtain assumption agreements
    from distributors in certain circumstances, by which the distributor assumes the
    producer’s obligation to make such residual payments. Some production companies
    apparently do not always do so, leaving the guilds without contractual privity enabling
    them to seek recourse from the distributor.
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 17
    The DMCA adds a new chapter to Title 28 of the U.S. Code that imposes on
    transferees those obligations to make residual payments that the producer would be
    required to have the transferee assume under the relevant collective bargaining
    agreement. The obligations attach only if the distributor knew or had reason to know
    that the motion picture was produced subject to a collective bargaining agreement, or
    in the event of a court order confirming an arbitration award under the collective
    bargaining agreement that the producer cannot satisfy within ninety days. There are
    two classes of transfers that are excluded from the scope of this provision. The first
    is transfers limited to public performance rights, and the second is grants of security
    interests, along with any subsequent transfers from the security interest holder.
    The provision also directs the Comptroller General, in consultation with the
    Register of Copyrights, to conduct a study on the conditions in the motion picture
    industry that gave rise to this provision, and the impact of the provision on the
    industry. The study is due two years from enactment.
    TITLE V: PROTECTION OF CERTAIN ORIGINAL DESIGNS
    Title V of the DMCA, entitled the Vessel Hull Design Protection Act
    (VHDPA), adds a new chapter 13 to Title 17 of the U.S. Code. It creates a new system
    for protecting original designs of certain useful articles that make the article attractive
    or distinctive in appearance. For purposes of the VHDPA, “useful articles” are limited
    to the hulls (including the decks) of vessels no longer than 200 feet.
    A design is protected under the VHDPA as soon as a useful article embodying
    the design is made public or a registration for the design is published. Protection is lost
    if an application for registration is not made within two years after a design is first made
    public, but a design is not registrable if it has been made public more than one year
    before the date of the application for registration. Once registered, protection
    continues for ten years from the date protection begins.
    The VHDPA is subject to a legislative sunset: the Act expires two years from
    enactment (October 28, 2000). The Copyright Office is directed to conduct two joint
    studies with the Patent and Trademark Office—the first by October 28, 1999 and the
    second by October 28, 2000—evaluating the impact of the VHDPA.
    EFFECTIVE DATES
    Most provisions of the DMCA are effective on the date of enactment. There
    are, however, several exceptions. The technical amendments in Title I that relate to
    eligibility of works for protection under U.S. copyright law by virtue of the new WIPO
    treaties do not take effect until the relevant treaty comes into force. Similarly,
    restoration of copyright protection for such works does not become effective until the
    relevant treaty comes into force. The prohibition on the act of circumvention of access
    The Digital Millennium Copyright Act of 1998
    Copyright Office Summary December 1998 Page 18
    control measures does not take effect until two years from enactment (October 28,
    2000).
    F