Today is the 10th anniversary of the Digital Millennium Copyright Act (DMCA) – a law that content owners claimed was absolutely necessary if they were to make content available in digital form. At the time the legislation was being considered, opponents including libraries, museums, and representatives of the consumer electronics industry warned that the legislation would jeopardize fair use and other lawful uses. Today, many of these fears have been realized. What is more, the DMCA has been used in ways lawmakers never intended. However, the law's effectiveness in preventing “piracy” still remains questionable.
Over the course of this week and into the next PK will post a series of video interviews with scholars, educators, and innovators affected by the DMCA. Stay tuned and hear what they have to say. We will also have several posts on this blog exploring different parts of the DMCA. For today let’s start with a basic overview.
There are two major parts to the DMCA – the anti-circumvention provisions and the Internet Service Provider (ISP) liability limitation provisions.
The anti-circumvention provisions prohibit breaking locks that protect access to digital content. An example of such a digital lock would be the CSS encryption used on DVDs. These provisions also prevent the marketing of technology that allows people to break digital locks.
While Congress may have intended that the anti-circumvention provisions be used in preventing copyright infringement, the design of these provisions has led to several problems. Often, the provisions are applied without regard to whether a use is infringing or lawful. For example, although time-shifting television and radio programs is a fair use, because of the anti-circumvention provisions, RealNetworks was able to sue Streambox when it introduced a technology that would allow users to record music and movies streamed over the Internet. Although making movie clips for classroom use is lawful under copyright law, the anti-circumvention provisions have, in the past, prevented media professors from breaking the CSS encryption on DVDs to make these clips.
In addition, the Copyright Office rulemaking, which is supposed to mitigate the adverse effects of the anti-circumvention provisions on lawful uses, is ineffective. Also, the provisions vest too much control in copyright owners over the design of devices.
The ISP liability limitation provisions provide a safe harbor to Internet access providers like Verizon and Comcast and content hosts like Youtube if they satisfy certain conditions. Access providers have to maintain a policy of terminating the Internet access of repeat infringers. Content hosts have to take down infringing content when notified by copyright holders. These provisions were envisioned as an easy mechanism to root out infringement. However, they have resulted in users' content being taken down unfairly. Users have also been exposed to the possibility that ISPs will cut off their Internet access without verifying allegations of infringement. To a great extent, the design of the law has been responsible for this consequence.
We promise to explore the intricacies of the DMCA’s provisions and how they affect you. Stay tuned.