The Digital Millennium Contract is a US law passed in 1998 in an attempt to modernize copyright law to deal with the Internet. The DMCA has a number of provisions, but we’ll be focusing on the ones that have most affected the web we have today.
In particular, we’ll be focusing on the “notice and takedown” provisions that provide “safe harbor” for many service providers, as well as the anti-circumvention provisions that criminalize many common actions.
Safe Harbor & Takedown Notices
The DMCA extends a “safe harbor” to “service providers,” defined as “a provider of online services or network access, or the operator of facilities therefor.” For example, if a user uploads a copyrighted video to YouTube, posts a copyrighted article on Tumblr, places a copyrighted file on Dropbox and shares links publically, or just hosts a copyright-infringing website with a web hosting provider, the provider of the service — YouTube, Tumblr, Dropbox, or the web host — is exempt from liability. In other words, the DMCA provides protections to sites like YouTube, preventing them from being sued just because they’re hosting copyrighted content uploaded by a user.
To actually be eligible for this exemption, the service provider must meet a few conditions:
- The service provider must not be aware of the infringing behavior. In other words, YouTube is exempt because it allows anyone to upload videos without requiring approval. If YouTube checked each uploaded video, they might be liable if they hosted copyrighted content, because they should have known.
- The service provider must not be receiving a direct financial benefit from the infringing activity. For example, a website that seems to exist only to make money from pirated material would not receive these protections, although this part of the law does seem a bit vague.
- If the service provider is made aware of infringing content on their service, they must quickly remove it.
The DMCA allows anyone to file a “DMCA takedown notice,” which is an official notice to a service provider — anything from a video-hosting website like YouTube to a web-hosting service hosting someone’s website. The notice identifies content being hosted by a service and states that the filer believes it infringes their copyright.
Because of the safe harbor provisions in the DMCA, services are incentivized to take down the purportedly infringing content quickly, as they want to maintain their exemption. If they don’t take the content down quickly, they may be liable for monetary damages if sued in court.
This is a much faster way to get content taken offline than the typical legal route, as it only requires sending a takedown notice, which can be prepared without a lawyer. Rather than a long court process, the content will probably be taken down fairly quickly and without court costs.
If your content is taken down due to a DMCA notice, the online-service provider will alert you to this. In cases where a DMCA notice is filed against your content, you have the ability to file a “counter-notice.” This is a notice sent to the online service provider where you state that a mistake was made. If the person who filed the original takedown notice takes no further action (such as requesting an injunction in court), the work taken down can be restored after 10 business days.
Note that the DMCA is a US law, and online service providers located in other countries are under no obligation to honor such takedown notices.
DMCA Takedown Notices — Good or Bad?
The DMCA’s safe harbor and takedown notice provisions have shaped the evolution of the web we have today, making it possible for services like YouTube to exist without becoming sued into the ground as a result of their users’ actions. As long as a service makes a good-faith effort to take down infringing content when they’re informed of it, they’re not liable for the actions of their users and everyone involved can skip a long, expensive court process. If you found content of your own being infringed against online, you could send a DMCA takedown notice to remove it from the hosting service or take down a website hosted by a web-hosting provider.
However, there are also downsides to the DMCA takedown procedure. Some organizations often file takedown notices very aggressively. For example, movie studios recently filed a takedown notice asking Google to remove the address of another takedown notice from its search results, calling the takedown notice “infringing.” In another case, an organization filed a takedown notice against a YouTube video containing birds singing, claiming that the sound of the birds singing in the background was their copyrighted content. Such incidents suggest that large organizations are filing takedown notices en masse based on algorithms, catching legitimate content in the crossfire.
DMCA notices have also been used to take down political ads, although the content they contain would likely be considered “fair use.”
Under the DMCA, anyone who “who knowingly materially misrepresents” — or lies, in other words — in a DMCA takedown notice is liable for damages. However, this would be tough to prove. An organization that files DMCA takedown notices against legitimate content without checking too closely wouldn’t be liable for any damages. Organizations can only be held responsible for filing DMCA notices they know to be false, not ones filed negligently without double-checking.
So are takedown notices good or bad? We’ll pass on the answer to this one and let you make up your own mind. Takedown notices have their positive aspects, but they’ve also been misused.
Another part of the DMCA makes it a crime to circumvent technological access controls. Breaking any type of “digital lock,” no matter how weak, is considered a crime, even if you own the device and aren’t violating copyright otherwise. (There are some exemptions, which we’ll get to later.)
Circumvention is defined as “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner,” and is illegal.
A variety of common things that would otherwise be legal and ethical are illegal under the DMCA:
- Watching video DVDs on Linux using libdvdcss, which most DVD-watching Linux users use.
- Ripping a DVD movie to your hard drive so you can have a digital backup copy or view it on a device without a physical DVD drive.
- Removing the DRM on an eBook so you can read it on a competing eReader.
- Removing the DRM on a music file, video file, or any other type of media file so you can use it with software or hardware that doesn’t support the DRM.
- Jailbreaking an iPad or Windows RT tablet so you can run software that hasn’t been approved by Apple or Microsoft.
- Unlocking a cell phone you own so you can use it with another cellular provider.
- Jailbreaking a Kindle to use the Kindle’s hardware for other purposes, such as as an e-ink display.
- Bypassing restrictions on a gaming console so you can play “homebrew” games made by amateur developers.
- Jailbreaking a PlayStation 3 so you can install Linux on it again, after this advertised feature was removed by Sony in an update
These aren’t just theoretical restrictions in a bad law; the US government has pressed criminal charges based on these restrictions. In 2001, the US government charged Dmitry Sklyarov with a crime for creating a piece of software that could remove DRM from eBooks. This was the first charge filed under the DMCA. For the crime of creating software that could remove DRM from eBooks, Dmitry faced up to 25 years in prison and a fine over over $2 million. Charges were dropped after he agreed to testify against his employer.
The DMCA offers an exemptions process. Every three years, the US Copyright Office gets together and considers granting exemptions to mitigate the DMCA’s harms. Organizations that have won exemptions in the past must fight to keep them. For example, in 2012 an exemption that legalized the unlocking of cell phones was not renewed. it was previously legal to unlock new cell phones, but it’s now illegal to unlock new cell phones. The exemptions process has decided that it’s currently legal to jailbreak a phone such as an iPhone, but it’s illegal to jailbreak a tablet, such as an iPad.
Charges are unlikely to be filed against average users who perform these actions, but programmers and organizations who create and distribute the tools to allow them to do so are at risk of criminal prosecution under the DMCA.
Comic by XKCD.
The DMCA has helped shape the web for all of us, whether or not we live in the US. It’s the reason why websites like YouTube can exist without being liable for damages, why takedown notices can quickly remove pirated content (sometimes catching legitimate content in the crossfire), and why circumvention tools exist in such a legal gray area. Similar laws have been passed — and are being passed — in other countries.
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