Digital Millennium Copyright Act (DMCA)

DMCA: The Basics

President Bill Clinton signed the DMCA into law on Oct. 28, 1998. Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). The DMCA implements the World Intellectual Property Organization's Copyright Treaty, and its Performances and Phonograms Treaty.

The DMCA is divided into five titles, but libraries, researchers and consumers worry most about the lingering effects of the Act's anticircumvention provisions, which are codified at Section 1201 of the Copyright Act of 1976.

In its simplest form, Section 1201 prohibits people from "breaking" or hacking into any technological "lock" that controls access to a copyrighted work. The section also prohibits the sale or distribution of any product or service that is designed to "break" or hack a technological "lock."

The Act provides very limited exemptions, including a “shopping privilege” exemption for libraries, archives, and educational institutions. It also provides for exemptions to the anti-circumvention ban for some groups adversely affected in their ability to make noninfringing uses of particular classes of work. The Copyright Office engages in rulemaking to identify such users. Only limited, narrow categories have been exempted.

Copyright owners have claimed that implementing increasingly restrictive technological measures is the only way to stem the tide of piracy. Libraries, researchers and consumer groups, however, fear that the owners' measures undermine traditional copyright privileges, including those under the "first sale" and "fair use" doctrines.

Additionally, businesses have used the DMCA to stifle criticism, competition, and the free flow of information. Industry groups have threatened to sue academic researchers who publicize flaws in copyright protection technology; producers of DVDs and streaming media have sought to enjoin software which disables copy protection on their products; manufacturers have sued to block aftermarket competition in toner cartridges, data storage hardware, and garage door openers; and hobbyists who designed software to let end users to play videogames and digital music on alternate platforms have been threatened or sued by the game and music companies.

DMCA issues, particularly the DMCA's anticircumvention provisions, are intertwined with digital rights management ("DRM") and fair use issues. For more information on these issues, please see the DRM and fair use sections of our web site.

Materials

The following information will help AALL members understand the DMCA and how it affects libraries and librarians.

Member Articles

• "Slip-Sliding Away: Time Expiring on DMCA Challenges" (Dames). Reviews DMCA developments of 2001, emphasizing the Universal City Studios v. Corley, Felten v. RIAA, and U.S. v. Sklyarov cases.

Documents

• Benefit Authors without Limiting Advancement or Net Consumer Expectations Act ("BALANCE Act") (http://tinyurl.com/plvod) Rep. Zoe Lofgren (D-CA) has re-introduced legislation that will allow consumers to make copies of purchased digital media for use in their car, computer or mobile device. The bill also affirms the application of the fair use privilege to digital works and transmissions.(H.R. 4536, 109th Congress). The co-sponsors are Rep. Rick Boucher (VA) and Rep. John Doolittle (CA) The bill was referred to the House Judiciary committee on Dec. 14, 2005. (THOMAS)
  • Press Release (Rep. Lofgren web site) http://www.house.gov/lofgren/news/2003/030304.htm
  • Business Software Alliance opposition (BSA website) http://tinyurl.com/k87fa
• Boucher Re-Introduces Digital Fair Use Bill (http://www.ll.georgetown.edu/aallwash/aa01082003.html) : Rep. Rick Boucher (D-VA) has re-introduced a bill that reaffirms fair use in the digital age. The bill is entitled the "Digital Media Consumers' Rights Act of 2005." (H.R. 1201, 109th Congress) The bill was referred to the House Subcommittee on Commerce, Trade and Consumer Protection. (THOMAS)
  • DMCRA Overview (Rep. Boucher web site) http://www.house.gov/boucher/docs/dmcrahandout.htm
  • Section Analysis (Rep. Boucher web site) http://www.house.gov/boucher/docs/dmcrasec.htm
• “Unintended Consequences: Seven Years under the DMCA” (Electronic Frontier Foundation) http://www.eff.org/IP/DMCA/?f=unintended_consequences.html An ongoing EFF project, most recently updated in April 2006, tracking reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate competitors.
• Section 1201 Comments (third comment period) http://www.copyright.gov/1201/ The U.S. Copyright Office is required to analyze whether section 1201's blanket prohibition against circumventing technological measures hampers copyright principles such as the “first sale” doctrine. The third public comment period ended February 2, 2006.
  • Comments from Library Associations http://www.copyright.gov/1201/2006/comments/band_LCA.pdf AALL, along with the other national library associations, urged renewal of the existing exemptions, the creation of an exemption for AV works and sound recordings, and the creation of an exemption allowing consumers to disable controls that threaten their privacy and the security of their computers.
• Section 1201 Comments (second comment period) http://www.copyright.gov/1201/2003/reply/reply1.html : The U.S. Copyright Office is legally required to analyze whether section 1201's blanket prohibition against circumventing technological measures hampers copyright principles such as the "first sale" doctrine. The second public comment period ended Feb. 19, 2003. (U.S. Copyright Office)
  • Comments from Library Associations (http://www.copyright.gov/1201/2003/comments/033.pdf ) : AALL, along with the other national library associations, offered "modest proposals" because "more appropriately ambitious exemptions designed to address the growing imbalance between copyright holders and the public ... were rejected by the Register of Copyrights in the first rulemaking." (U.S. Copyright Office)
• Digital Millennium Copyright Act study (http://www.copyright.gov/reports/studies/dmca/dmca_study.html) : An August 2001 report from the Copyright Office that announced the Office would decline to recommend changes in the copyright law that would address libraries' concerns about the continued viability of the "first sale" doctrine in the digital age. (U.S. Copyright Office)
• Section 1201 Comments (first comment period) (http://www.copyright.gov/1201/anticirc.html ) : The U.S. Copyright Office is legally required to analyze whether section 1201's blanket prohibition against circumventing technological measures hampers copyright principles such as the "first sale" doctrine. The first public comment period ended Feb. 17, 2000. (U.S. Copyright Office)
  • Comments from Library Associations (http://www.copyright.gov/1201/comments/162.pdf ) : AALL, along with the other national library associations, urge the Librarian of Congress "to issue a meaningful exemption ... from the ... 1201(a) restriction against copyrighted works protected by certain technological measures" that protects "first sale," fair use and other longstanding copyright principles. (U.S. Copyright Office)
• DMCA Primer: A primer on the DMCA and the Copyright Term Extension Act (http://www.ll.georgetown.edu/aallwash/rep0399.html ) , prepared for AALL by Arnold P. Lutzker, Esq. (AALL Washington Office)
• DMCA Guide (ALA Washington Office): An analysis of the DMCA, prepared for the ALA Washington Office by Jonathan Band, Esq.
• DMCA Summary (http://hrrc.org/dmca/act.html): Summary of the entire DMCA. (Home Recording Rights Coalition). Legislative history: http://hrrc.org/dmca/dmca_history.html
• H.R. 2281 (http://www.copyright.gov/legislation/hr2281.pdf ) : This House bill was signed into law on Oct. 28, 1998 as the Digital Millennium Copyright Act. (U.S. House of Representatives)

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