Delving into the DMCA, Part I: What-All Is Even In There???

This post marks the first in an at-least-two-part series on the DMCA, partly because it’s good preparation for a talk I’m giving at the Library Technology Conference next week. This installment is dedicated to Iris, who was looking for “an actually readable summary of the DMCA” the other day. Hope this is progress.

Nothing in U.S. copyright law is straightforward, but the Digital Millennium Copyright Act (DMCA) is a special source of confusion. One reason for the confusion is that several DMCA provisions are extremely technical with regard to both legal and technological details. Another reason for the confusion is that, while most people think of the DMCA as something like “the digital/internet copyright stuff”,  the DMCA was actually a catch-all bill that included a number of revisions and additions to existing copyright laws, some of which had nothing to do with internet tech or digital formats at all. Herewith (how’s that for a lawyer word?), a brief overview of what-all is/was in the DMCA.

The Legislation

boat on a beach
Hammamet boat BY-NC-ND Stewart Morris

The Digital Millenium Copyright Act, (P.L. 105-304 – link retrieves full text of the bill) was passed on October 28, 1998. It was subtitled, “An Act To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes.”

The act itself is made up of five “titles”, or sections. The Titles’ titles are, in order, “WIPO Treaties Implementation”, “Online Copyright Infringement Liability Limitation”, “Computer Maintenance or Repair Copyright Exemption”, “Miscellaneous Provisions”, and “Protection of Certain Original Designs”. Some provisions from Titles I-IV may be familiar to readers with more than a passing acquaintance with copyright law. Provisions from Title V are less likely to be familiar, unless you are an IP geek or participate in certain expensive hobbies.

The DMCA amended and added to existing copyright law in several different ways. It created several brand new sections of the copyright code (17 U.S.C. §§ 512, 1201-1205, 1301-1332; 28 U.S.C. § 4001) and made major changes to several other sections. All of these alterations were “part of the DMCA”, but you’ve probably only heard of a few of them.

The DMCA Stuff You’ve Heard About

The “big name” pieces of the DMCA are from Titles I and II: the “anticircumvention” provisions (codified at 17 U.S.C. § 1201), and the “notice-and-takedown” provisions (codified at 17 U.S.C. § 512). I plan separate “Delving into the DMCA” posts on each of them, because they are well-known for good reasons!

You are likely to have heard of the anticircumvention provisions partly because they create civil and criminal liability for many daily activities of our technology-driven lives (modifying hardware you rightfully own, taking clips of content from a DVD or Blu-Ray disc) and partly because there is a process of petitioning for exemptions to the restrictions that brings them back into the public eye every three years or so. You are likely to have heard of the notice-and-takedown provisions because, by insulating service providers from copyright liability for content users post, they’ve been key factors in the growth of user-generated web content (YouTube, Facebook, blogs – basically all of “Web 2.0”.)

The DMCA Stuff You Haven’t Heard About

fiberglass boat under construction in a workshop
image BY-NC Storer Boat Plans/Michael Storer

Title I includes several technical provisions having to do with the rights of international copyright holders, amending various pieces of U.S. code to bring us into alignment with our treaty obligations. One piece restored the copyrights in some international works that had moved into the public domain – which may actually sound familiar, as the Supreme Court just granted cert on (agreed to review) the constitutionality of a very similar, slightly earlier law.

Title I also contained a provision (17 U.S.C. § 1202) that, more or less, makes it illegal to mess with the metadata on copyrightable works. There’s more to it than that, and it hasn’t been well hashed-out by courts – so it’s likely also a future blog post.

Title II was primarily concerned with the § 512 notice-and-takedown provisions. It also makes it clear that linking to infringing content, when there was no reason to know that linked content was infringing, the links themselves are not something service providers are liable for.

Title III updated a particular provision of the copyright code (17 U.S.C. § 117) that was enacted to deal with the ridiculous repercussions of one court’s immensely stupid early computer-copyright decision.

The “Miscellaneous Provisions” of Title IV are quite wide-ranging. Two large pieces have to do with perfomance rights in sound recordings for radio and online broadcasting. Another piece has to do with collective-bargaining rights of folks involved in big-studio movie production. Perhaps the most interesting piece to readers of this blog is the provision that updated 17 U.S.C. § 108 to give libraries the right to make digital preservation copies of materials from our collections – before the DMCA, we only had an exemption for making analog copies.

Title V, the one about “Protection of Certain Original Designs” actually had its own legislative title – the “Vessel Hull Design Protection Act”. That’s right, the DMCA has a section about boats. (Suddenly, these illustrations make slightly more sense, eh?)

wooden rowboat
Sven’s New Row Boat BY-NC-ND Let Ideas Compete

The DMCA creates a copyright-like ownership right in designs for hulls of boats less than 200 feet long that “make the article attractive or distinctive in appearance.” It’s not an insignificant piece of legislation, either. Copyright is not supposed to protect useful objects – that’s supposed to be the realm of patent. But patent has a fairly high requirement for “novelty” and “nonobviousness” that most boat hull designs would never reach. This provision really blurs some lines between patent and copyright, and creates a whole new form of intellectual property for this very narrow field of design. For more info, check out this joint report from the U.S. Copyright Office and Patent & Trademark Office.

Wrapup/Further Reading

Anyway. There’s my brief overview of the Digital Millennium Copyright Act. Hope you found it informative. If you still want to know more, the Wikipedia article is quite good; and this summary from the Copyright Office is techical, but readable (and was my main reference in writing this post.) Or you could go read the text of the legislation itself.

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