FAQ: Questions and Answers

[back to notice text] Question: What are the DMCA's anti-circumvention provisions? Answer: The Digital Millennium Copyright Act (DMCA) is the latest amendment to copyright law, which introduced a new category of copyright violations that prohibit the "circumvention" of technical locks and controls on the use of digital content and products. These anti-circumvention provisions put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works. The DMCA contains four main provisions: a prohibition on circumventing access controls [1201(a)(1)(A)]; an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)]; a copyright protection circumvention device ban [1201(b)]; and, a prohibition on the removal of copyright management information (CMI) [1202(b)]. The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities. [back to notice text] Question: Why was the DMCA passed? Answer: The stated purpose of the DMCA is to ensure the protection of copyright works in the digital world by fortifying the technological blocks on access and copying of those works within a legal framework. This amendment to title 17 (the Copyright Act) was signed into law on October 28, 1998 as the United States implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty adopted by countries around the world two years earlier. The DMCA implemented these recommendations in a much stricter fashion than required, giving copyright owners broader protection than was intended in the international treaty. [back to notice text] Question: So what is all the controversy about the DMCA? Answer: The shift towards the distribution of copyrighted materials in digital form has been accompanied by new methods of protection. Through the use of "digital locks," technological systems behind which these copyrighted materials are protected, producers and manufacturers are able to automate fine grained control over who can access, use, and/or copy their works and under what conditions. Producers insist these "digital locks" are necessary to protect their materials from being pirated or misappropriated. But, these new technological systems, and the DMCA provisions making it a crime to bypass them, undermine individuals ability to make "fair use" of digital information, and essentially replace the negotiation of the terms of use for those products with unilateral terms dictated by copyright owners. These self-help technical protection mechanisms are generally not evident to the purchaser or user until after the sale. In some cases, producers who use these technical locks to enforce limits on access and use of their works fail to disclose the terms of use to the purchasers or licensees of their products. The defenses and exemptions to the circumvention prohibition and circumvention device bans included in the law are fatefully narrow. As a result, the legitimate activities of scientists, software engineers, journalists, and others have been chilled. The DMCA has been used by copyright holders and the government to prevent the creation of third-party software products, silence computer scientists, and prosecute journalists who provide hypertext links to software code. [back to notice text] Question: What are the DMCA Safe Harbor Provisions? Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable. [back to notice text] Question: What does it mean to distribute circumvention tools? Answer: Section 1201(a)(2) defines distribution as the "manufacture, import, offer to the public, provide, or otherwise traffic" of circumvention tools. This definition can be interpreted extremely broadly as evident in the court's analysis in the DVD encryption Universal v. Corley case. In its decision, the court considered not only making the source code of a program for free a type of distribution, but also found that merely linking to a web site containing illegal tools can constitute "trafficking." [back to notice text] Question: What are technological protection measures? Answer: Technological protection systems are already in place in DVDs, eBooks, video game consoles, robotic toys, Internet streaming, and password-protected sections of web sites. The fact that a digital protection may be really weak and easy to circumvent has not prevented courts from applying this law to punish those who bypass them. The DMCA defines an access control mechanism as a measure which "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." [1201(a)(3)(B)] An access control is a technology, like a password or encryption that controls who or what is able to interact with the copyrighted work. It is a violation of the DMCA to circumvent access controls, but it is also a violation to provide tools to others that circumvent access controls (including selling, distributing free of charge, and possibly even linking to a site with such technology ? or even the source code). The DMCA defines a copy control mechanism as a measure which, "in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner." [1201(b)(2)(B)]. Technological systems designed to protect against copyright infringement control whether the work can be copied, how many copies can be made, how long you can have possession of the work, etc. It is a violation of the DMCA to provide tools to others that circumvent copy controls [1201(b)], but it is not a violation of the DMCA to engage in the act of circumventing copy controls. Rather, the provision serves to buttress prohibitions against infringing activities of traditional copyright law. [back to notice text] Question: What are the civil penalties for a DMCA 1201 violation? Answer: Civil cases are brought in federal district court where the court has broad authority to grant injunctive and monetary relief. Injunctions can be granted forbidding the distribution of the tools or products involved in the violation. The court may also order the destruction of the tools or products involved in the violation. The court can also award actual damages, profits gained through infringement, and attorney's fees. If an individual held in violation of the DMCA commits another such violation within the three-year period following the judgment, the court may increase the damages up to triple the amount that would otherwise be awarded. In circumstances involving innocent violators, it is up to the courts to decide whether to reduce damages. But, in the case of nonprofit library, archives or educational institutions, the court must remit damages if it finds that the institution did not know of the violation. [back to notice text] Question: What are the criminal penalties for a DMCA 1201 violation? Answer: If the circumvention violations are determined to be willful and for commercial or private financial gain, first time offenders may be fined up to $500,000, imprisoned for five years, or both. For repeat offenders, the maximum penalty increases to a fine of $1,000,000, imprisonment for up to ten years, or both. Criminal penalties are not applicable to nonprofit libraries, archives, and educational institutions. [back to notice text] Question: What are the criminal penalties for a DMCA 1201 violation? Answer: If the circumvention violations are determined to be willful and for commercial or private financial gain, first time offenders may be fined up to $500,000, imprisoned for five years, or both. For repeat offenders, the maximum penalty increases to a fine of $1,000,000, imprisonment for up to ten years, or both. Criminal penalties are not applicable to nonprofit libraries, archives, and educational institutions. [back to notice text] Question: What does the "reservation of rights" language mean? What are they "waiving" at me? Answer: Many C&Ds; will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.

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