What is the DMCA and what does it do?


The Digital Millennium Copyright Act (DMCA) of 1988 is a United States copyright law that criminalizes production, distribution and/or dissemination of technology devices or services intended to circumvent digital rights management measures that control user access and use of copyrighted works.

“The DMCA was designed to strike a balance between the needs of consumers and those of creators. The issue is a control over piracy. In the eight years since the law’s passage, piracy has not disappeared, nor, by many measures, has it lessened.”(1)

The act makes it illegal to circumvent any access control measures regardless of whether or not infringement upon copyright occurred. This was done through implementation of two 1996 treaties of the World Intellectual Property Organization (WIPO) one of 17 specialized agencies of the United Nations “to encourage creative activity, to promote the protection of intellectual property throughout the world.”(2)

Through giving artists and producers of an incentive to produce creative and informative works, the DMCA ensures that use of the internet and personal computers will not be used to take advantage of their work and that they will receive the credit or payment due. The problem is that giving and receiving content is easier and cheaper than any means of creation.

ou can see the full text of the DMCA at: http://www.copyright.gov/legislation/dmca.pdf

The DMCA is a very interesting peice of legislation but we are going to focus on Scetion 512, here is the text verbatim from the DMCA:

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/).

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)).

  •  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.

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