Late
last year, the President signed into law the Digital Millennium Copyright Act
(DMCA). The DMCA amended federal copyright law in several important respects,
all of which are meant to update the law's application to technology that did
not exist at the time of the last major revision of copyright law. The DMCA
also enabled Congress to ratify the World Intellectual Property Organization
Treaties.
The
DMCA prohibits circumvention of a "technological measure" that controls access to copyrighted material on
the Internet. Such measures include encryption, scrambling, password protection,
or other methods of access requiring the use of a "key" from the copyright
owner. Going to the source of the problem, Congress also prohibited the manufacturing,
importation, and sale of any technology that can be used to circumvent protective
technological measures.
Also
included in the DMCA is a "fair use" provision
for nonprofit libraries, archives, or educational institutions that are open
to the public. They may gain access to a commercially exploited copyrighted
work solely for the purpose of making a good‑faith determination of whether
to acquire a copy of that work. The fair use provision does not apply if an
identical copy of the work is reasonably available in another form.
To
protect the integrity of "copyright management information" concerning a work, the DMCA prohibits intentionally
removing or altering such information, or providing such information, knowing
it to be false, with the intent to cause or conceal a copyright infringement.
The main goal of this provision is to prevent removal of copyright notices,
a first step in fraudulently passing off works as not copyrighted.
The
sections of the law on circumvention of copyright protection systems and on
violating the integrity of copyright management information are enforceable
by a civil action for damages and injunctive relief and by criminal prosecution.
The
most anticipated part of the DMCA exempts online service providers from copyright
liability if certain conditions are met. The term "service provider" is broadly defined and includes
not only commercial vendors but also providers of other online services, such
as Internet access, e‑mail, chat rooms, and web page hosting. The substance
of the requirements for the "safe harbors" varies somewhat
depending on the type of activity engaged in by the provider, but the requirements
have these prerequisites in common: (1) implementation of a policy of terminating
service to repeat online copyright infringers; (2) accommodation and noninterference
with standard technical measures used to identify and protect copyrighted works;
and (3) designation of an agent to receive notifications of claimed copyright
infringement.