The Digital Millennium Copyright Act and Other Recent Copyright Law Changes
On October 28, 1998, President Clinton signed into law the Digital Millennium Copyright Act (the "DMCA"), which amends U.S. copyright law to (1) provide legal protection for, and remedies to prevent thec ircumvention of, technological protection measures and copyright management information; (2) limit the liability of service providers for copyright infringement arising out of transitory digital network communications, systems caching, providing infringing material on the service providers' systems, and referring or linking users to an online location which contains infringing material or activities; (3) specifically provide that it is not a copyright infringement for an owner or a lessee of a computer system to make or authorize the making of a copy of a computer program for the purpose of maintaining or repairing their computer hardware; (4) amend the Digital Performance Right in Sound Recording Act of 1995 to require webcasters to pay a royalty to record companies and to provide webcasters with a statutory license to use such sound recordings under certain conditions enumerated therein; and (5) create a new class of design protection for original vessel hull designs. In addition, on October 27, 1998 President Clinton signed into law statutes which establish the Sonny Bono Copyright Term Extension Act and the Fairness in Music Licensing Act of 1998.
This Cooley Alert will provide an overview of the DMCA, the Sonny Bono Copyright Term Extension Act and the Fairness in Music Licensing Act of 1998. The full text of the DMCA can be found at [ http://lcweb.loc.gov/copyright/legislation/hr2281.pdf] and the full text of both the Sonny Bono Copyright Term Extension Act and the Fairness in Music Licensing Act of 1998 can be found at [ http://lcweb.loc.gov/copyright/legislation/s505.pdf].
Technological Protection Measures and Copyright Management Information
Title I of the DMCA implements the World Intellectual Property Organization ("WIPO") Copyright Treaty and the WIPO Performances and Phonograms Treaty, which require participating countries to provide legal protection and effective remedies against the circumvention of technological protection measures, such as encryption and copy protection, and the tampering with copyright management information. The WIPO treaties can be found at [ http://www.wipo.org/eng/main.htm].
The anticircumvention provisions of the DMCA are designed to enforce private parties' use of technological protection measures developed to protect access to, and the copyright rights of, a copyrighted work.
The DMCA specifies the following dates by which certain provisions of Title I dealing with such anticircumvention measures become effective:
October 28, 1998
It is illegal to manufacture, import, provide or distribute any technology, product or device which is primarily designed to circumvent technological measures that protect the rights of a copyright owner.
October 28, 1998
It is illegal to manufacture, import, provide or distribute certain analog devices which are listed in the DMCA and which have been modified to bypass any existing industry-standard copy control technologies.
April 28, 2000
It is illegal to manufacture, import, provide or distribute certain analog devices which are listed in the DMCA unless such devices conform to industry-standard copy control technology.
October 28, 2000
It is illegal to defeat or bypass technological protection measures designed to control access to a copyrighted work or to manufacture, import, provide or distribute any technology, product or device which (1) is primarily designed or produced to circumvent such technological measures; or (2) has only limited commercially significant purpose or use other than to circumvent such technological measures; or (3) is knowingly marketed, directly or indirectly, for use to circumvent such technological measures.
All of the anticircumvention prohibitions referenced above extend not only to manufacturers, but to those who traffic in devices that are designed and used primarily for circumventing such technological protection measures.
In response to concerns raised about the presumed illegality of activities that may involve circumvention for otherwise legitimate purposes, the DMCA acknowledges that nothing in Title I is intended to affect previously available rights, remedies, limitations or defenses to copyright infringement, including fair use, and provides the following exceptions to the general prohibition against anticircumvention measures:
Reverse Engineering: "Legitimate" software developers may continue engaging in certain reverse engineering activities for the purpose of achieving interoperability of computer programs to the extent permitted by applicable law prior to enactment of the DMCA.
Encryption Research: Certain "permissible acts of encryption research" are recognized, including the use or development of any encryption tools with the legitimate and substantial commercial purpose of advancing the "state of knowledge in the field of encryption technology" or of assisting in the development of encryption products.
Controlling Access for Minors: Parents may continue to take measures to supervise and control their children's access to inappropriate material on the Internet by the use of tools to gain access to the information necessary to ascertain whether material is appropriate.
Privacy Protections: Circumvention of technological measures is permitted in limited circumstances relating to a person's right to access personally identifying information.
Security Testing: Acts of "security testing" by means of accessing a computer, computer system or computer network for the purpose of good faith testing of security measures are also exempted from the anticircumvention measures.
Nonprofit Libraries, Archives and Educational Institutions: Any of these entities which gain access to a commercially exploited work solely to determine, in good faith, whether to acquire that work are not liable, if they use such work only for that purpose and retain such work no longer than necessary to make their determination.
Law Enforcement Activities: Under certain conditions, lawfully authorized investigative, protective or intelligence activities of an officer, agent or employee of the state or federal government, acting at the direction of the government may also be permitted to circumvent such technological measures.
The DMCA also includes a catchall exemption which states that nothing in the DMCA will abrogate, diminish or weaken the provisions of any other law that prevents the violation of an individual's privacy in connection with the individual's use of the Internet. This exemption addresses concerns that efforts by Internet users to protect their privacy by disabling or bypassing existing or future technologies used to gather personally identifiable information could be prohibited by the DMCA prohibitions against circumvention measures.
Copyright Management Information Measures
The DMCA defines a new category of information known as "copyright management information," which includes such items as the title of the work, the author, the copyright owner, and in certain instances, the writer, performer and director, terms and conditions for the use of the work, identifying numbers or symbols referring to such information or links to such information and any other information as the Register of Copyrights may require by regulation.
The DMCA makes it illegal to knowingly, and with intent to induce or conceal infringement, provide copyright management information that is false or to distribute, or import for distribution, copyright management information that is false. It is also illegal to intentionally remove or alter any copyright management information, to distribute or import copyright management information knowing that such information has been removed or altered without the authority of the copyright owner or the law, or to distribute, import or publicly perform works or phonorecords knowing that the copyright management information has been so removed or altered.
The DMCA recognizes the special problems that certain broadcasting entities may have with the transmission of copyright management information. As a result, radio and television broadcasters, cable systems and persons who provide programming to such broadcasters or systems may not be liable for breach of the DMCA provisions on copyright management information in certain, limited instances if they did not intend to induce, enable, facilitate or conceal such information.
Online Service Provider Liability Limitations
Title II of the DMCA specifies several "safe harbor" provisions which insulate Internet service providers (ISPs) and other online services, under certain conditions, from liability for copyright infringement for infringing activities and materials of their users. There are many limitations to these safe harbors provided in the DMCA and some require proactive steps by the service providers, such as designating agents and providing the Copyright Office with information concerning such agent and following "notice and take down" procedures specified in the DMCA.
To be eligible for any of these safe harbors, a service provider must have adopted and implemented a policy providing for termination of users who are repeat infringers, and the service provider must take steps to inform its users of that policy. In addition, a service provider must accommodate and not interfere with "standard" technical measures used by copyright owners to identify and protect copyrighted works.
Transitory Digital Network Communications
A service provider will not be liable for copyright infringement because of its transmitting, routing or providing connections for, infringing material through the service provider's system or network, or by reason of the service provider's intermediate or transient storage of such material, if (1) the transmission was initiated by a person other than the service provider; (2) the transmission, routing, connection or storage is carried out through an automatic process with no selection of material by the service provider; (3) the service provider does not select the recipients of the material; (4) no copy made by the service provider is maintained on the system in a manner ordinarily accessible to anyone other than the intended recipients for a longer period than reasonably necessary; and (5) the material is transmitted without modification to its contents.
Title II generally exempts service providers from copyright infringement where the service provider makes an intermediate and temporary copy of material requested by a person other than the service provider itself in order to deliver copies of such information to subsequent requestors more quickly.
Material on Service Providers' Systems
Title II also exempts service providers from direct copyright infringement for unknowingly storing infringing material on the service provider's system at the direction of a user if the service provider (1) designates an agent to receive notifications of claimed infringement, and (2) takes prompt action to remove or disable access to the infringing material upon receipt of any notice of claimed infringement. However, this safe harbor provides no relief for possible contributory or vicarious infringement for user-initiated infringing materials.
Information Location Tools
The DMCA also shields service providers from direct liability for copyright infringement which may result from the service provider unknowingly referring or linking users, by means of information locating tools such as a directory, index, reference, pointer, or a hypertext link, to an online location, which contains infringing material or activity. This provision also provides no relief for possible contributory or vicarious infringement of a service provider which refers or links users to infringing materials.
Title II also includes several "miscellaneous" provisions, including the following:
Anyone who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification, is liable for any damages incurred by a service provider or a user as a result of the service provider relying on such misrepresentation in removing or disabling access to the material.
Replacement of Removed or Disabled Material and Limitation on Other Liability
The DMCA also provides guidelines for a service provider to follow in order to avoid liability for any claim based on the service provider's good faith disabling of access to, or removal of, material claimed to be infringing.
The DMCA provides a procedure by which a copyright owner can obtain a subpoena ordering a service provider to disclose information sufficient to identify an alleged infringer of material described in a notification previously sent to the service provider.
For an overview of additional common legal issues websites may encounter when permitting user-generated content, please review our Cooley Alert titled "Website Provider Liability for User Content and Actions" (October 1998) at:
Computer Maintenance or Repair Exemption
Title III of the DMCA states that, for purposes of maintenance or repair of computer hardware, it is not a copyright infringement for an owner or lessee of a computer system to make or authorize the making of a copy of a computer program, if the copy is made by virtue of the activation of a machine that contains a lawful copy of that software. This provision effectively overrules MAI Systems Corp. v. Peak Computer, 991 F.2d 511 (9th Cir., 1993), which held that an independent service organization violated the Copyright Act by making a unauthorized copy of its customer's computer programs when it turned on the customer's computer to perform maintenance.
Webcasting and Miscellaneous
Title IV of the DMCA is comprised of several disparate but significant "miscellaneous provisions," one of which includes an amendment to the Digital Performance Right in Sound Recordings Act of 1995 ("DPRSRA") which requires webcasters and other nonsubscription broadcasters of digital recordings to pay a royalty to record companies whose recordings they transmit, in addition to the royalties which they already pay to the owners of the copyrights in the musical compositions themselves. Title IV also extends the same statutory licensing scheme to nonexempt digital subscription service transmissions in the DPRSRA, if the transmission (1) was not part of an interactive service, (2) did not exceed the "sound recordings performance complement," which is a limit on the number of selections that can be played from one phonorecord, boxed set, or featured artist within a three hour period, (3) did not give an advance program schedule or prior announcement of titles to be performed, and (4) included information encoded by authority of the copyright owner identifying the title, featured artist and related information. The fee that webcasters will pay has yet been determined. Interested parties will have six months to negotiate a fee; if no agreement is reached, an arbitration panel will be brought in.
Vessel Hull Design Protection
Title V of the DMCA is the Vessel Hull Design Protection Act. It creates a new class of copyright protection, limited to original vessel hull designs, which lasts for a term of ten years.
Sonny Bono Copyright Term Extension Act
The Sonny Bono Copyright Term Extension Act, among other things, extends the duration of copyright generally by adding 20 years to each of the previous copyright durations. This means that the copyright term for works has been extended as set forth below:
Type of Work
|Old Copyright Term||New Copyright Term|
Works created by individuals on or after January 1, 1978
Life of the author plus 50 years
Life of the author plus 70 years
Joint works created on or after January 1, 1978 by two or more authors who did not work for hire
Life of the last surviving author plus 50 years
Life of the last surviving author plus 70 years
Works created anonymously or by corporations on or after January 1, 1978
Earlier of 75 years from the year of the first publication or 100 years from the year of creation
Earlier of 95 years from the year of the first publication or 120 years from the year of creation
Works created, but not published or registered prior to January 1, 1978
Copyright commences as of January 1, 1978 and generally lasts for the terms above
Copyright commences as of January 1, 1978 and generally lasts for the terms above
Works with copyrights in their first term as of January 1, 1978
Duration is 28 years from the year the copyright was first secured plus right to renewal and extension of 47 years
Duration is 28 years from the year the copyright was first secured plus right to renewal and extension of 67 years
Copyrights still in their renewal term
Any copyright still in its renewal term prior to January 1, 1978 shall generally have a term of 75 years from the date the copyright was originally secured
Any copyright still in its renewal term as of October 27, 1998 shall have a term of 95 years from the date the copyright was originally secured
Fairness in Music Licensing Act of 1998
The Fairness in Music Licensing Act of 1998, which becomes effective January 25, 1999, exempts restaurants and drinking establishments under 3,750 square feet and retail establishments under 2,000 square feet ("Small Retail Establishments") from paying royalty fees for playing radio or television music, if the performance meets certain conditions set forth in the Act. It also enables Small Retail Establishment owners to challenge music licensing fees regionally. Previously, each time music was publicly performed in such a Small Retail Establishment, the copyright owner was entitled to compensation.