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Copyright: Digital Millennium Copyright Act

    The Digital Millennium Copyright Act (DMCA) is a complex piece of legislation that contains a "hodgepodge" of legislative themes including: the implementation of WIPO treaties, the criminalization of anti circumvention technologies (i.e. digital rights management technologies or DRM) and the limitations of liability contained in Title II.  The DMCA amended Title 17 of the U.S. Code (i.e. the copyright statute) and consists of five titles. The five titles are listed below and the full text of the legislation can be found here.

    Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.

    Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.

    Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.

    Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.

    Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.

    Comments: Essentially Title II added section 512 to the copyright statute which is located here. Sectiion 512 creates four new limitations on liability for copyright infringement by online service providers. The limitations are encomapassed in the following categories: (1) transitory communications; (2) system caching;(3) storage of information on systems or networks at direction of users; and (4) information location tools. They each mitigate liability based on the conduct of the service provider. Each category is dealt with separately below. If complied with, each category will prevent a plaintiff from recovering money damages from a service provider and may also restrict a plaintiff's ability to get injunctive relief. The categories are independent from each other, qualifying under one does not imply a qualification under the others. Finally, failure to qualify does not mean that other defenses are not available to the provider (e.g. fair use).

    Transitory Communications

    This refers to section 512(a). Essentially this category says that a service provider (SP) will not be liable simply because they provide the "pipes" by which infringing material is carried. To obtain protection the SP must be "out of the loop." The SP cannot initiate the transfer, or determine the recipients, or edit/modify the content. As long as the transfer is "automatic" and the SP does not exercise additional control, then protection is triggered.

    System Caching

    This refers to section 512(b). Caching is technical jargon for the maintenance of temporary copies of content (usually in a high speed access storage medium) for the more efficient delivery of the same content with respect to a subsequent request. Again the SP cannot maintain any kind of control of the content and the cached copy must be promptly removed upon notification that the content is infringing.

    Storage of Information on Systems or Networks

    This refers to section 512(c). This category limits the liability of the SP for end user content hosted on its information storage system(s) (e.g. a website). In order for protection to trigger the SP cannot have knowledge of infringing content, and if the SP has the ability to control said content, it cannot receive financial benefit from any infringing activity. Furthermore, upon notice of infringement the SP must "takedown" (or block access) to the infringing content. The SP is required to register an agent with the U.S. Copyright Office in order to receive notifications of infringement. Section 512(c)(3) provides the procedures for the notice and takedown procedure.

    Information Location Tools

    This refers to section 512(d). This section essentially provides the SP protection from "links" to content that contain infringing material. The same notice and knowledge rules apply here as in section 512(c).

    Comments: In addition to the limitations of liability discussed above, section 512 contains safeguards with respect  to fraudulent notifications and specific requirements that must be met in order to qualify as an SP.  It also contains some special rules regarding liability with respect to nonprofit educational institutions.


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