Primer on the Digital Millennium Act

Here is some information on the Digital Millennium Act during the Clinton administration as there were new ways to pirate copyrighted materials as they were being delivered through the media.  This will provide you with some history on how the issues regarding copyrights were dealt with in the past.  Please refer to our other resources on different areas of law to help you in your learning path.

With the explosion of media that the growth of the internet has brought, content creators must have new tools and protections to safeguard their works. This fact was noticed early on in the Clinton administration, and politicians soon began updating copyright laws and regulations to protect this new class of media. In 1993, the administration created a National Information Infrastructure task force to determine what policies were necessary for internet copyright protection. This group published a Green Paper calling for public input on the issue. After gaining information and opinions, they released The Report of the Working Group on Intellectual Property Rights in 1995, which was met with varied responses from concerned copyright owners and information institutions. The next year the World Intellectual Property Organization met for the first time and proposed a treaty with a similar set of regulations for copyright law. By 1998 Congress began focusing on this issue and renamed the legislature set forth by the WIPO the Digital Millennium Copyright Act. This is the same act which guides intellectual property disputes today, and has caused a great deal of debate. Some of the most impacted groups by this act are libraries and educational institutions, who face growing challenges from the limits imposed by this legislation.

The DMCA provided a huge update for aging copyright regulations. Primarily, this act created new rules to prevent copyright infringement. Its goal is not to protect creativity, but the investment in the production of content. The law bans the use of any device or service which specifically aims to counteract Technology Protection Measures. It prohibits the alteration of copyrighted works and includes Copyright Management Information, such as the title, author’s name, publisher’s name and other information as a protected class. Online Service Providers became exempt from liability due to their users actions. A committee was created to study the effect of these new laws on distance education. Finally, libraries gained updated ordinances to help them preserve and disseminate digital information. Along with the DMCA, the Sonny Bono Copyright Extension Act extended the term of copyright agreements by 20 years, reverting works which were currently public domain to a licensed use only. Although these ideas evolved through years of study, they have caused problems for many institutions who deal with mass amounts of information on a daily basis.

In many cases, tracking down perpetrators of internet copyright infringement proves difficult. It is difficult to track the owner of anonymous webpage which engages in infringement. Many copyright owners were turning against the Online Service Providers who hosted the offensive material. In response to this, the bill included a limitation on the liability of OSPs, provided the OSPs followed guidelines set out in law. The OSP must not provide or modify the content under copyright protection and cannot have knowledge of the activity. Along with these rules the OSP cannot transmit copyrighted material to recipients or receive compensation for these transmissions. OSPs are obliged to employ a “notice and take down” agent who communicates with transgressing sites and posts notices in the case of site dismantling. In addition to OSP compliance, copyright owners are similarly obligated to let OSPs operate without interfering with their processes or exploiting their systems for their own use.

Though the companies who provide internet access are obviously affected by the new rules, educational institutions are impacted in more indirect ways. As providers of information, higher education institutions depend on access to copyrighted materials to conduct business. For educators, it is nearly impossible to use copyrighted materials daily as educational tools. The cost of licensing is preventative, as information continues to change day by day. To make matters worse, it is not always possible to locate the owners of copyrighted works such as sound recordings and images. Educators simply are not on the same level as copyright owners in the eyes of the law. This continued debate threatens to exacerbate the current inequalities in education which distance learning aims to alleviate. Although the law protects academic institutions against the actions of their employees and student in accessing information, its effects on education have largely been detrimental to distance learning and the access of information for academic pursuits.

Libraries also continue to struggle with these regulations and have especially legitimate reasons to access copyrighted information for public knowledge. Through lobbying they gained two years of amnesty where they could access works protected by TPM. During this time the Librarian of Congress would review cases in which libraries may be exempt from using certain classes of copyrighted work. Libraries were given exemptions to the rules along with law enforcement, reverse engineering processes, encryption researchers, and security testers. Although these exemptions helped to allow access to some protected works, libraries still struggle with the law. The extension of copyright terms excludes many works which libraries had used as public domain, and is still a topic of contention. Though excluded from the original act, a clause to include databases and government documents as copyrighted material also threatens libraries’ access to information. If these kind of reference documents gain protection, libraries lose even more resources due to the prohibitive cost of licensing.

These institutions have been very vocal in explaining how the DMCA limits their ability to do legitimate business. The involvement of publishers, copyright holders, OSPs, libraries and education providers shows how important this debate is to many pieces of our society. Although these specific communities were greatly affected by DMCA’s passage, it is only a matter of time before other business and social concerns begin to butt heads with the regulations. As with all innovative technologies, the internet brings a wealth of opportunity and the possibility of new forms of exploitation. With time and active democratic participants, the DMCA will hopefully become a piece of legislation which clearly protects both the copyright holders and the users who depend on copyrighted information for their needs.

Links:

• Chilling Effects: What is all the Controversy about the DMCA?
• Broadcast Engineering: Library of Congress fails to ease DMCA controversy
• WiseGeek: What is the Digital Millennium Copyright Act
• ERIC Digest: Libraries in Today’s Digital Age: The Copyright Controversy
• ALA: DMCA: The Digital Millennium Copyright Act
• American Libraries: LC Unlocks Doors for Creators, Consumers with DMCA Exceptions
• TechRepublic: Copy protection software casues controversy
• Iowa Librarian: DMCA Takes Away Rights for Libraries, Consumers
• Copyright, Intellectual Propery & Legislation in Distance Education
• Cause/Effect: What Colleges and Universities Need to Know about the Digital Millennium Copyright Act