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Acts for the Millenium:

The Digital Millenium Copyright Act (DMCA)

© 1998 Philip R. Green, Law Offices of Green & Green all rights reserved.

THIS STORY is about a fast paced ‘bot, technology making publishing easier and better with a much larger audience, and a Congress of the US enacting legislation to cope with its challenges. With the coming of the next millenium Congress has been busy enacting legislation to meet it head on.

  1. The DMCA effects a sweeping change in copyright law; it ushers in the age of legislation tailored for the global online and data uses that are becoming more important a source of national income.
  2. The DMCA is in Five Titles and encompass the following copyright issues:
    1. Implementation of the WIPO Treaties calling for conformity in database and information technology cooperation internationally
    2. --These include many technical amendments to existing copyright law sections.
      -Reverse Engineering is more carefully defined.
      -Encryption Research is defined and encouraged for certain things.
    3. Limitations on the liability for copyright infringements of the ISP’s that might carry such materials. This includes a registration process and notice requirements.
      - Authors, artists, publishers and others who OWN copyrighted materials that are infringed can have those infringing items removed by the ISP that posts them online.
      -  ISPs can avoid liability for placing online infringing items on their servers by registration and designation of an agent.  
      -  If the owner sends proper notice to the ISP,ISPs can remove infringing item(s) without liability from infringement by the complaining party and without liability from the person(s) who infringed using the ISP's services.   even if it turns out (by a law suit) that the materials were not infringing.
    4. Computer maintenance and repair exemption from infringement. This overrules many cases that stated one may be liable for infringement if they made a "copy" no matter how transitory or temporary of software outside of the uses permitted by its customer’s user license.
    5. Ephemeral recordings of music on the Internet, fair use exceptions for uses of materials on the Internet by libraries and others, revised laws on film rights on transfer and other Provisions, and
    6. Copyright protection in designs of useful items like boat hulls and other original designs.
  3. WIPO TREATIES IMPLEMENTATION    Broadens U.S. adherence to two new worldwide treaties discussed in December, 1996 through 1998 and based on the broadness of the changes this may make to US copyright law, many of these will not take effect until after a two year test and study by the Department of Commerce to study its effects.
        >Protection of technological measures to secure software also known as "anitcircumvention" provisions to protect author's use of technology to prevent copying and restrict acts that are not authorized and result in an infringement.
        >Protection of copyright management information, "which identifies the work, the author of the work, the owner of any right in the work or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items is attached to a copy of a work or appears in connection with the communication of a work to the public."
        > To accomplish this Congress passed a new part of the Copyright act, Chapter. 12, sections 17 USC Sec 1200 et seq.  An analysis of these sections follows:
    1. CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS is made expressly illegal under new 17 USC 1201-1202. "No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter….."
      1. These violations of the copyright act, delayed as they are also apply to:
        1. "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--`(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner.
        2. The Act does not affect the following:
          1. rights, remedies, limitations, or defenses to copyright infringement, including fair use,
          2. enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof,…require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure,…enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.
        3. So why the delay? The rights of copyright owners on the one hand and the "freedom" of the information in works and the works "fair uses" on the other make for strange rules.
            1. · but the matter of preventing circumvention of software protective devices must be balanced by
            2. · the "fair" uses of such software and the
            3. · perceived need of the industry to be able to do a certain amount of "REVERSE ENGINEERING" so that "a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement…".
            4. If one wants to create A PROGRAM THAT WILL RUN UNDER ANOTHER, the law provides, for reverse engineering as stated "or, for the limited purpose of that person achieving interoperability of an independently created computer program with other programs, if such means [reverse engineering] are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title."
        4. Under Sec. 1201(g): ENCRYPTION RESEARCH is likewise fostered under this Act since it is stated to not be a copyright infringement to do research:
          1. Encryption research "means activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products.
            1. NOTE: See article on the US Policy towards encryption technology export in Encryption As Free Speech.
          2. Since it is desirable to do this research and to do the opposite, to research on methods to screen out adult web sites to children. Security Measures section of The Act state that Security Testing is necessary and it is not the intent of the Act to limit such testing to secure data, security and integrity of computers.  Research to circumvent encryption for security purposes is not an infringement, "if—
              1. the person lawfully obtained the encrypted copy, phonorecord, performance, or display of the published work;
              2. such act is necessary to conduct such encryption research;
              3. the person made a good faith effort to obtain authorization before the circumvention; and
              4. such act does not constitute infringement … or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 [crimes] amended by the Computer Fraud and Abuse Act of 1986."
          3. How to be exempt from liability for forcing technology to decrypt a protected file:
            1. You are trying to see your own information,
            2. The "sole purpose" of the research is "to prevent the access of minors to material on the Internet."
            3. And is not otherwise an infringement.

IN OTHER PARTS OF THIS SERIES: ACTS FOR THE MILLENIUM: