Orange County Law Offiice of Patrick Grannan

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Digital Millennium Copyright Act

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.

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