The Digital Millennium Copyright Act of 1998

Status: The DMCA was signed into law by President Clinton on October 28, 1998

Before we talk about copyright laws online, it’s important to take a brief look at this issue before the Internet. Copyright law has a long volatile history. It is, however, a Constitutional right.

Article 1, Section 8 of the U.S. Constitution states: “Congress shall have the power …To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”

Even the guy who helped write the above article, Thomas Jefferson, grappled with the idea that an idea can be the domain of one individual for more time than necessary to profit from that idea, though he was referring more to patents than to copyright law. The time a work’s creator holds a copyright is an area of contention and has changed over the years.

The first copyright law was implemented by the First Congress in 1790 and granted authors’ copyrights for 14 years, renewable for another 14 years.  In 1831, the Copyright Act was revised to extend a copyright to 28 years with a possibility of a 14 year extension.  In 1909, the U.S. Copyright Act to allow renewal of 28 years.  A major revision of the U.S. Copyright Act in 1978 extended the term of protection to life of the author plus 50 years. This after death extension was extended to 70 years in 1998 by the SonnyBono Copyright Term Extension Act. (Copyright.gov)

One important concept for both copyright and patent laws is to encourage development of new ideas by giving protection through “ownership” of works.  In other words authors, musicians, and artists should receive monetary compensation for reproduction of their works.

An excellent example of this concept is the 1991 law case, Basic Books v. Kinko’sThis popular copying service was sued by major publishers for copyright infringement because they were in the business of copying “class packs” for student use mostly in higher education institutions.  I’m writing from personal experience here.  Before this case, a professor could select readings from various publications and Kinko’s would put together a class pack costing students much less than buying each book for class.  Kinko’s and other copy services would sell the class packs to students for a much lower cost than purchasing individual books. Of course, the authors of these works received no compensation from this transaction.  The lawsuit didn’t end favorably for Kinko’s.  The court found Kinko’s violated the Copyright Act.  The were fined $510,000 plus attorney’s fees and costs. They were also told not to do it again, injunctive relief. Because of this case, copy services must get permission from the publisher and pay a fee. Presumably, some of this fee goes to the author. This action has significantly increased the costs of class packs. It has also added to the time it takes for production of class packs.

This case sent a chill down the spines of all copying services, though other cases followed Kinko’s.  The above case represents an attempt to protect authors from reproducing their published, paper versions of their works without their permission or financial compensation.  In 1991, little did publishers know that all was about to change with the emergence of the Internet which easily put creative works in the hands of everyone.

The internet brings new challenges

The early years of the Internet was like the Wild West of the new digital age. It seemed to many that whatever appeared on the Internet was there for the taking. This included books, articles and music whether these items contained valid copyrights or were in the public domain.  Not only were books and articles available for users to download for free, but programs became available that allowed users to download music and movies for free, mostly from other users. What’s the difference between allowing a user to download a CD and a CD owner allowing a friend to borrow the CD to rerecord?

A company called Napster found out. Napster was an early music sharing site that provided its members with an easy way to trade music, without paying for it. According to an article by Tom Lamont in TheObserver, Feb. 23, 2013, there were 20 million Napster users. Around 2000, the recording industry sued Napster for copyright violations and won, forcing the music sharing to charge for songs or go out of business. Some 18,000 Napster users were also sued. (Lamont)

The Digital Millennium Copyright Act of 1998  (DMCA) (link to summary) was enacted to bring the U.S. Copyright Law more in line with the digital age. Here is a link to the actual act. It was signed into law by President Clinton on October 28, 1998 to address major copyright issues here and abroad.

Protecting copyright laws in the United States is hard enough but the digital age made this task even more difficult. In Title 1, the DMCA addresses requirements of the 1996 World Intellectual Property Organization (WIPO) to provide protection for copyrighted works from other member countries. The act creates  the Copyright Treaty (WCT) and the Performances and Phonograms Treaty (WPPT).  The WIPO states that their mission is  “…to promote innovation and creativity for the economic, social and cultural development of all countries, through a balanced and effective international intellectual property system. “(WIPO.int)  The WIPO consists of 186 member countries. (WIPO.int, “Member States”)

There are two major components of the DMCA. The anti-circumvention provision and “safe harbors” provision.

To prevent Internet piracy many owners of copyrighted digital works have installed programs that lock or limit access to their works.  The DMCA makes it illegal for users to “circumvent” these devises to gain access to copyrighted works.  Sec. 1201, (A) of the DMCA states, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  According to Chillingeffects.org, the act has four main provisions:

  1. a prohibition on circumventing access controls [1201(a)(1)(A)];
  2. an access control circumvention device ban (sometimes called the “trafficking” ban) [1201(a)(2)];
  3. a copyright protection circumvention device ban [1201(b)]; and,
  4. a prohibition on the removal of copyright management information (CMI) [1202(b)]. (Chilling Effects, FAQs)

Penalties for anti-circumvention violations include civil remedies and criminal penalties.  Civil penalties include actual or statutory damages and largely depend on the mercy of the court and might include granting a temporary or permanent injunction to prevent the violation to awarding monetary damages.

Penalties for criminal offenses can include fines between $500,000 to $1,000,000 or from 5 to 10 years imprisonment. (Copyright.gov, Title 17)

Although free music sharing sites such as Napster, received major publicity, Internet users also downloaded copyright protected books, articles, photos and artwork.

In 1998, when the DMCA was enacted, little did legislators know how vast the Internet community would become. As you will see in this section, numerous regulations were proposed and some even passed to help curtail copyright violations.

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