Isn’t it amazing how some questions, which seem so simple, can produce such lengthy answers? “What is DMCA” is such a question. While there is a brief answer – the DMCA is part of federal copyright law in the United States – the truth is a DMCA is a sprawling law with many tentacles.
What Does DMCA Stand For?
What is “DMCA?” DMCA is an abbreviation for the Digital Millennium Copyright Act of 1998. Yes, a mouthful. Politicians have a tradition of generating long-winded names for legislation. Commentators were particularly scornful of the “Pension And Social Security Measuring Equivalence Permanent Linking of Everyone’s Actual Savings Environment (PASS ME PLEASE) Act.” The purpose of the PASS ME PLEASE Act? To correct a typo in another federal law. Seriously.
One Representative, Mike Honda, was so irked by the ever-lengthening titles of federal laws that he introduced a bill to force Congress to stop the practice. Unfortunately, Mr. Honda gave it the title, “Accountability and Congressional Responsibility On Naming Your Motions (ACRONYM) Act.”
The Digital Millennium Copyright Act (DMCA) was signed into law in October of 2019. However, the DMCA did not appear out of the blue. The bill was not a stand-alone piece of legislation. Instead, representatives created the Act to codify two treaties the United States and other countries had agreed to through WIPO – the World Intellectual Property Organization.
WIPO is an agency under the authority of the United Nations. The members of the United Nations work through WIPO to arrive at universal policies on various intellectual property issues to minimize legal conflicts between countries. Here’s a short overview of WIPO.
What is the purpose of the DMCA? Congress passed the DMCA to provide clarity on particular copyright issues in the face of new and evolving technology while harmonizing the Copyright Act of 1976 with the copyright laws of other countries.
President Clinton signed the DMCA into law on October 28, 1998 – a critical fact.
What was the state of the Internet in 1998?
- The vast majority of people accessed the Internet through dial-up modems.
- America Online was the dominant Internet company at the time.
- You couldn’t access the web from your phone.
- Larry Page and Sergey Brin launched Google in 1998.
- Facebook would not become a company for another six years.
- YouTube wouldn’t exist for another seven years.
- We had to wait another eight years for Twitter.
Yes, Congress passed the DMCA during the caveman era of the Internet. While the DMCA is controversial, the law has aged relatively well given how much the medium it governs has evolved in twenty plus years.
The DMCA addresses five subjects through what are known as Titles.
- Title 1: WIPO Copyright and Performances and Phonograms Treaties Implementation Act.
- Title II: Online Copyright Infringement Liability Limitation Act
- Title III: Computer Maintenance Competition Assurance Act
- Title IV: Miscellaneous Provisions
- Title V: Vessel Hull Design Protection Act
Most people feel three of the titles are far and away the most important.
a. Title 1 – DMCA Anti-Circumvention – 17 U.S.C. 1201
Title 1 is relatively broad, but the critical component is the DMCA anti-circumvention language found in Section 1201. Commentators often refer to the provision as the digital rights management section of the Act.
Section 1201 prohibits people from breaking security on copyrighted works or from creating technology that allows others to achieve the same result. For example, your car or truck is usually computer-controlled to some extent. The manufacturer copyrights the chip that controls how the engine performs, and the manufacturer includes security software to keep nefarious individuals from tweaking the software. You would be violating Section 1201 if you were to break through that security to modify the software.
If you are a car person, you might be thinking people access vehicle chips all the time. You would be correct. Mechanics often take this step during repairs. Some car owners will also modify the software to increase the performance of their engine. You can even go online and search for “vehicle performance modification chips” to find a variety of choices.
Aren’t these chips illegal?
Title 1 of the DMCA authorizes the Copyright Office to issue limited exemptions to Section 1201 every three years. As you can guess, breaching digital security to work on your car is an allowed exemption. Take a look at the Copyright Office exemption proceedings in 2018.
b. Title 2 – Online Copyright Infringement Liability Limitation
Title 2 of the DMCA is known as the Online Copyright Infringement Liability Limitation (OCILLA). The OCILLA sets forth a process for addressing copyright infringement in the online world. If you run a website or app online, the DMCA safe harbor and compliance process will quickly become familiar to you. You can read more below on DMCA protection, but let’s first finish off our discussion of the three most essential Titles of the DMCA.
c. Title 3 – Computer Maintenance Competition Assurance Act
The CMCAA element of the DMCA is focussed on a single topic. The CCMAA authorizes individuals and businesses repairing computers to make temporary, limited copies of copyrighted code on the computer while making the repairs. Yes, computer manufacturers could sue repair shops and individuals who repaired computers for copyright infringement before this Act. Imagine that!
Title 2 – DMCA Section 512 – Online Copyright Disputes
We are going to focus on Title 2 for the rest of this article as it is likely the reason you are here.
The Online Copyright Infringement Liability Limitation (OCILLA) is a bit of an unwieldy phrase, so let’s just refer to it as the DMCA safe harbor provision from here on. These provisions address how parties should resolve copyright infringement disputes in the online environment. We need to talk briefly about copyrights and copyright infringement to understand how the DMCA works.
What is Copyright?
Copyright is an automatic right that is assigned when a person creates an “original work of authorship.” These “works” must have some element of creativity. Examples include a novel, software code, website designs, blog posts, photographs, videos, and songs.
The person who creates the work is granted the copyright in it. That person then has the right to use the work in a manner they see fit. For example, the copyright holder might create a course on how to make a bazillion dollars licking envelopes. That person then has the sole right to make copies and sell that course to individuals online.
The creator can also license the copyright to another party in exchange for legal consideration, which usually takes the form of a royalty. For example, JK Rowling can license the rights to her next novel to a publisher that will pay her a hefty upfront fee as well as a royalty on the sale of each book.
What is Copyright Infringement?
As you might guess, copyright infringement occurs when a person uses the copyrighted work of another party without permission. For example, I would be committing copyright infringement if I make copies of JK Rowlings’ new novel, and list it for sale on Amazon without her permission. She would sue me in United States Federal Court seeking damages for the infringement. I would undoubtedly lose that case.
Personally, I find it easier to understand copyright infringement by looking at real-world cases. Here are a few famous cases including one where the Beastie Boys sued a company for copyright infringement.
DMCA Safe Harbor Provision
We can find the DMCA safe harbor provision in 17 U.S.C. 512 of the United States Code. The language reads as follows:
(a) Transitory Digital Network Communications. – A service provider shall not be liable for monetary relief…for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if –
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
In plain English, Congress is telling us that your website or app cannot be held liable for copyright infringement claims based on content uploaded by your users. Consider an example to understand the DMCA protection.
a. Safe Harbor Example
You launch a forum on celebrities. Members of the forum can discuss stars as well as post different materials. Members will inevitably post videos and photographs of their favorite or least favorite celebrities. Let’s assume a member copies a photo from the TMZ website and posts it in the forum.
Does the act constitute copyright infringement?
Can TMZ sue you, the forum owner, for copyright infringement? No. The DMCA restricts TMZ to pursuing the member who posted the photograph. TMZ cannot come after you because the DMCA safe harbor provides you with immunity from such claims. However, keep in mind the DMCA offers no protection if you or one of your forum employees posts the content. DMCA immunity only extends to independent users of the online property in question.
Confused? Give this a watch:
DMCA Takedown Process
Copyright holders can use the DMCA takedown process to get their copyrighted works removed from sites where someone has posted the content without permission. Let’s assume you create a 3,000-word blog post on a complex topic. You spend a week on the post and turn it into an informative masterpiece.
You search on Google a week after publishing the post to see where your article is ranking. Imagine your shock when you see Google listing four sites with the same title. You realize that three of the sites have stolen and republished your post. And two of the sites outrank you!
You can file a DMCA notice of complaint with the DMCA agent of each site. The claim is known as a “DMCA takedown notice.” The notice must include the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The website or app you’ve submitted the takedown notice to should automatically remove the content in question upon receipt of the complaint. The dispute usually ends at this point in the vast majority of cases. However, the party who posted your copyrighted content has the right to file a counter-notice. The DMCA counter-notice tells the website that the person had the right to post the contest regardless of the copyright holder’s position. Consider an example.
a. Takedown Notice Example
You create a video and publish it on YouTube. You configure the video so nobody can share it. I watch the video and am outraged by the position you take in the recording. I make a copy of it off YouTube, and republish it on my Facebook page with a written explanation of why your position in the video is so, so wrong.
At this point, you file a DMCA takedown notice with Facebook. Facebook takes down the video and alerts me to the complaint. I would file a counter-notice indicating that I have every right to post the video because I am reviewing and criticizing the content. [I am allowed to use copyrighted works in this way under copyright law according to something known as the fair use defense.]
Facebook would automatically republish the content.
What if the copyright holder disagrees with the decision? They can file a copyright infringement lawsuit in federal court against the individual posting the copyrighted content without permission.
DMCA Safe Harbor Requirements
You might be thinking website and app owners love the DMCA. You would be correct, but Congress wrote in a catch. Online businesses must comply with several safe harbor requirements to maintain immunity. Let’s take a closer look at these requirements.
a. DMCA Agent
The DMCA requires the owner of an online property [website or app] to select and register a DMCA agent with the Copyright Office. The agent’s role is to receive copyright complaints on behalf of your property. You can act as the agent or use a third-party such as our service. The reason most people and companies use a third-party agent has to do with privacy. The agent’s name, address, phone number, and email address must appear on the website or app, typically in the form of a DMCA Policy, as well as in a database of agents maintained by the Copyright Office that the public can access. So, do you want people knowing where you live if you work from home?
b. Copyright Complaint
Copyright holders will forward a DMCA takedown notice to your DMCA agent by locating the contact information in your DMCA policy. The DMCA claim should meet the criteria we discussed earlier in this article. If it does, you must remove the contested content from public view, but not delete it, under DMCA law. The DMCA requires you to act “expeditiously,” which most courts interpret as within 48 hours of receiving the takedown notice.
c. DMCA Counter-Notice
The DMCA next requires you to notify the party who posted the disputed content that you have received a copyright complaint regarding their published material. One typically accomplishes this step by sending an email message to the person. The user can then forward a DMCA counter-notice to you contesting the position of the copyright holder. The counter-notice must include the following information:
- Identify the Contested Content – What is the user challenging and where can it be found on the site or app in question.
- Good Faith Belief Claim – A statement by the user that they have a good faith belief the infringing claim and takedown of material is the result of a mistake or misidentification. For example, the user can post the copyrighted material because they are performing a review – a fair use defense.
- Consent To Federal Court Jurisdiction – A statement indicating the user consents to the jurisdiction of the United States federal court in the area where the person resides.
- Contact Information – The person’s name, address, and telephone number.
- Signature – The person must “sign” the counter-notice in electronic form or by hand.
The Digital Millennium Copyright Act is controversial, in part, because Congress made a mistake while drafting the law. There is no deadline for the DMCA counter-notice. A user could arguably file a counter-notice years after the original complaint, which would lead to chaos. Most online businesses hold on to contested content for a few months before deleting it.
d. Sending Counter-Notice To Copyright Holder
At this point, you must forward the counter-notice to the copyright holder who lodged the original takedown notice. The message must also include a statement that you will republish the contested content in 10 to 14 days if the copyright holder does not file a copyright infringement lawsuit and provide you with a copy. You will make this statement because DMCA law requires it. If no complaint is received, you must republish the content.
e. Repeat Infringer Policy
The DMCA also requires that you establish a repeat infringer policy for your website or app. A repeat infringer is someone who repeatedly posts infringing content such as a person who records and uploads hundreds of songs – a copyright abuser. Your repeat infringer policy must designate the number of times a user can be accused of copyright infringement before your bar them from the website or app. The standard industry policy is three successful complaints in a two year period. You do not need to register the policy with the Copyright Office or make it available to the public, but you do need one in writing.
DMCA Fair Use Defense
Congress and courts have established a fair use defense in copyright law. Generally, fair use means there are specific uses of copyrighted works that we are going to allow regardless of the fact the material is copyrighted. An example would be a movie review in which the reviewer shows a short clip of the film. As a society, we allow criticism of copyrighted works so the public can learn how others view such brilliant pieces of film-making as, “Dude, Where’s My Car?”
Is there a DMCA fair use defense? Yes. A person can assert the fair use defense when filing a counter-notification during the DMCA compliance process. If you take this position, make sure your fair use defense has merit. The copyright holders only option, once you counter, is to file a federal copyright infringement lawsuit against you or abandon the claim.
The Ninth Circuit Court of Appels recently established a potential second DMCA fair use defense. The court held copyright holders must consider whether a valid, fair use defense exists before filing a DMCA takedown notice in Lenz v. Universal. However, the case is only binding law in the Ninth Circuit federal court, and music publishers and other large copyright holders will challenge the ruling in the future.
Are you confused about fair use? Check this video out.
Famous DMCA Cases
a. Viacom vs. YouTube Safe Harbor Brawl
Viacom sued YouTube and Google for more than a billion dollars in damages in March 2007. Viacom asserted the defendants were liable for copyright infringement associated with videos uploaded by users to YouTube. The defendants countered by arguing the DMCA safe harbor provisions protected them from such claims.
Yes, Viacom challenged the very foundation of Title 2 of the DMCA. The court’s decision would be critical to the future of the Internet. Succinctly put, did the DMCA protect sites from copyright infringement claims based on user-generated content or not?
After three years of legal wrangling, both parties filed Motions for Summary Judgement in the case. A party argues in such a motion that based upon undisputed facts; there is no means by which the other party can prevail. The court found in favor of YouTube and Google, establishing the DMCA safe harbor as a valid and legally binding concept online in the United States. The case would subsequently limp along for years through appeals, but legal scholars consider the case to have established that courts will uphold the DMCA safe harbor in copyright infringement cases involving user-generated content.
b. Celebrity Sites DMCA Agent Problem
In BWP Media USA v. Hollywood Fan Sites LLC, a court ruled on a unique DMCA issue. Does a website waive the DMCA safe harbor protections if it fails to designate a DMCA agent on time?
The defendant, in this case, was compromised of a parent company and two subsidiaries. The group ran upwards of 4,500 celebrity websites where fans could post about their favorite celebrities. As you can imagine, many people copied and posted images and videos from other locations, which often constituted copyright infringement.
BWP Media USA filed suit for copyright infringement against the defendants. The defendants argued the DMCA safe harbor protected them. BWP responded by claiming the subsidiary companies were not protected because they had each failed to designate a DMCA agent as the law requires.
Judge J. Paul Oetken presided over the case and ruled as follows:
At issue in this motion is § 512(c)’s requirement that a service provider “designate an agent to receive notifications of claimed infringement.” 17 U.S.C. § 512(c)(2). To effectively make such a designation, “[t]he statute requires that the service provider make ‘available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: the name, address, phone number, and electronic mail address of the agent.’
The evidence was clear. The subsidiary companies failed to take these steps. Judge Oetken ruled the two subsidiary companies had waived their safe harbor protection. The subsidiaries would join their members as defendants in a brutal copyright infringement trial.
Yes, a painful lesson.
c. Cox Communications Repeat Infringer Fiasco
Cox Communications provides internet access, phone, and cable television services. A music publisher sued the company for copyright infringement with the plaintiff asserting Cox was liable for infringing content uploaded to the Internet through the Cox system. The company responded by arguing it was immune from such claims under the DMCA safe harbor provisions.
The plaintiff in the case was able to obtain the email messages and memorandums Cox employees had issued during the contested time period. In reviewing those documents, it quickly became apparent that Cox had not met the DMCA safe harbor requirements. While the company had established the required Repeat Infringer Policy, the company had a policy of playing fast and loose with the enforcement of it. Specifically, Cox’s Manager of Customer Abuse Operations wrote in one message:
“As we move forward in this challenging time we want to hold on to every subscriber we can. With this in mind, if a customer is terminated for DMCA, you are able to reactivate them after you give them a stern warning about violating our AUP and the DMCA. We must still terminate in order for us to be in compliance with safe harbor but once termination is complete, we have fulfilled our obligation. After you reactivate them the DMCA ‘counter’ restarts; The procedure restarts with the sending of warning letters, just like a first offense. This is to be an unwritten semi-policy… We do not talk about it or give the subscriber any indication that reactivating them is normal. Use your best judgment and remember to do what is right for our company and subscribers… This only pertains to DMCA violations. It does not pertain to spammers, hackers, etc.”
Yes, the company was canceling repeat infringers, but then allowing those infringers to open new accounts.
The judge and jury frowned on such conduct as you might imagine. The judge granted a motion from the suing party setting aside the DMCA safe harbor. Cox no longer had immunity from copyright infringement claims based on content users uploaded through its service. This loss proved particularly painful when the jury awarded the plaintiff in the case $25,000,000. If Cox had not allowed the repeat infringers back on the service, it would’ve had no liability in the case.
Copyright holders and Internet advocates both enjoy dishing out DMCA criticisms. Both parties make claims that have significant merit, but neither has managed to present a better solution.
Copyright holders believe the DMCA is faulty because the law is ineffective when offenders republish the content on multiple websites and apps. While the copyright holder might use the DMCA takedown notice process to remove the content from five sites, another 50 will pop-up overnight. The copyright holder ends up playing a game of whack-a-mole it has no chance of winning.
Internet advocates argue the DMCA is faulty because of DMCA abuse. They allege copyright holders abuse the law by filing false or meritless takedown notices. Again, the claim has merit. Many larger copyright holders use software to automate the search and complaint process. The software hunts for specific indicators online and, when found, submits DMCA takedown notices to all the parties. The process often results in humorous outcomes where a company will serve a takedown notice for content it has distributed, such as a press release talking about a product. Microsoft made this mistake a few times. The fact Google has reported it will receive over a billion takedown notices this year of which ninety percent or meritless is no laughing matter. Unfortunately, the DMCA doesn’t provide any substantive relief for DMCA abuse.
Both parties’ criticisms are valid. One would think they could reach a compromise that would improve the DMCA, but it is an unlikely outcome given both parties take extreme positions. Copyright holders demand every website and app screen all user-generated content for infringing material. Internet advocates demand all information online be free for use, to wit, no copyright protection at all. Neither position is viable, so it appears the DMCA will remain as is for the foreseeable future.
Congress passed the DMCA in 1998 but has made no substantive changes to most of the provisions since that time. With technology and the Internet evolving at a breakneck pace, should Congress reconsider the DMCA? Unfortunately, Congress has shown little interest in tackling copyright law, but other countries are taking a different approach.
The European Union has spent the last four years radically altering its rules for operating online. The General Data Protection Regulation (“GDPR”) went into effect on May 25, 2018, and represented an entirely new approach to privacy online. In the Spring of 2019, the EU tackled the application of copyright law to the Internet by enacting a hotly debated Copyright Directive.
The EU Copyright Directive is so controversial that people marched in the streets against it.
Second, the Copyright Directive requires online platforms with large amounts of user-generated content to effectively filter infringing materials from the content. Companies that fail to filter the content properly can be held liable under copyright law, unlike in the United States where the DMCA safe harbor protects such companies. While nobody will shed a tear for the internet giants in regards to this new requirement, free speech advocates fear companies may aggressively filter content to avoid lawsuits. Free speech could be stifled as a result, even where copyright law allows for the use of copyrighted material such as in cases of parody or criticism.
Which approach will prove superior – the DMCA or Copyright Directive? Only time will tell.
What is the DMCA? The DMCA is a controversial law. Copyright holders tend to view it with disdain, but so do advocates of a free Internet. Perhaps the EU Copyright Directive will set a new course for copyright law, but it appears the DMCA is here to stay for now.
Have a website or app and allow users to post to it? Make sure you are DMCA compliant. Contact us if you need an agent.