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What is the Digital Millennium Copyright Act?

If you have intellectual property that you want to protect online, you need to know about the Digital Millennium Copyright Act (DMCA). This is a federal law that was enacted in 1998 to implement two international treaties on intellectual property rights in the digital age. The DMCA has two main parts: Title I and Title II. To learn more about the DMCA, simply continue reading and reach out to Lemler IP today.

Title I: The Anti-Circumvention Provisions

Title I of the DMCA prohibits the circumvention of technological measures that control access to copyrighted works. This means that you cannot use any device, software, or service that bypasses or disables the encryption, password, watermark, or other protection that prevents unauthorized copying or viewing of a work. For example, you cannot use a DVD pirating device to copy a movie from a DVD, or a VPN to access a streaming service that is not available in your country.

However, there are some exceptions and limitations to this rule. The DMCA allows circumvention for certain purposes, such as:

  • Fair use: You can circumvent a protection measure if you are using the work for criticism, comment, news reporting, teaching, scholarship, or research.
  • Encryption research: You can circumvent a protection measure if you are conducting research on encryption technology and you have obtained permission from the copyright owner or the government.
  • Security testing: You can bypass certain protection measures if you are conducting a penetration test of a computer system or network and you have obtained consent from the owner or operator.
  • Reverse engineering: You can override a security measure if you are reverse-engineering a software program to achieve interoperability with another program and you have lawfully acquired a copy of the program.
  • Library preservation: You can circumvent a protection measure if you are a library or an archive and you are making a copy of a work for preservation purposes.

The DMCA also grants the Librarian of Congress the authority to issue exemptions to the anti-circumvention rule every three years, based on public input and recommendations from experts. Some of the current exemptions include:

  • E-books: You can circumvent a protection measure on an e-book to enable read-aloud functions or screen readers for people with disabilities.
  • Video games: You can breach a safeguard on a video game to regain access to an online server that has been terminated by the creator or distributor.
  • Smartphones: You can override a security feature on a smartphone to liberate it from a specific provider or to root it for personalization purposes.
  • Smart TVs: You can override a protection measure on a smart TV to activate third-party applications or services that are not sanctioned by the maker.

Title II: The Online Service Provider Liability Limitation

Title II of the DMCA curtails the liability of online service providers (OSPs) for infringing activities that transpire on their platforms by users or third parties. This implies that OSPs are not accountable for damages or injunctions if they adhere to certain stipulations and procedures. For instance, an OSP is not accountable for hosting a website that encompasses infringing content uploaded by a user, as long as the OSP does not possess actual knowledge of the infringement, does not profit financially from it, and responds swiftly to takedown notices from copyright owners. A takedown notice is a formal petition from a copyright owner or their agent to an OSP to eradicate or disable access to an infringing work. The notice must comprise:

  • The name and contact information of the copyright owner or their agent
  • A depiction of the work that is alleged to be infringed
  • A depiction of where the infringing work is situated on the OSP’s platform
  • A statement that the complainant has a good faith conviction that the use of the work is not authorized by the copyright owner, their agent, or the law
  • A statement that the information in the notice is precise and that the complainant is authorized to act on behalf of the copyright owner
  • A signature (physical or electronic) of the complainant

An OSP must expeditiously remove or disable access to the infringing work upon receiving a valid takedown notice. The OSP must also notify the user who posted the work and inform them of their right to file a counter-notice. A counter-notice is a formal appeal from the user to an OSP to reinstate access to a work that was eradicated or disabled due to a takedown notice. The counter-notice must encompass:

  • The name and contact information of the user
  • A delineation of where the work was situated on the OSP’s platform before it was eradicated or disabled
  • A statement that the user has a good faith conviction that the work was eradicated or disabled as a consequence of an error or misidentification
  • A statement that the user acquiesces to the jurisdiction of their local federal court and concurs to accept service of process from the complainant
  • A signature (physical or electronic) of the user

An OSP must expeditiously restore access to the work upon receiving a valid counter-notice, unless it receives notice from the complainant that they have filed a lawsuit against the user within 10 business days.

The DMCA also provides safe harbors for other types of OSP activities, such as:

  • Transitory communications: An OSP is not liable for transmitting infringing content through its network if it does not initiate, select, modify, or store it.
  • System caching: An OSP is not liable for storing infringing content on its servers for faster delivery if it does not modify it and complies with industry standards.
  • Information location tools: An OSP is not liable for providing links, directories, search engines, or other tools that point to infringing content if it does not have actual knowledge of it and responds promptly to takedown notices.

Ultimately, the DMCA is an important law that affects intellectual property rights in the digital era. It aims to balance the interests of copyright owners and online service providers while promoting innovation and creativity. However, it also raises some challenges and controversies regarding its interpretation, implementation, and impact. If you have intellectual property that you want to protect online, you should consult with an experienced Orleans Parish, Louisiana intellectual property lawyer who can advise you on your rights and obligations under the DMCA.

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