Primer for the Digital Millennium
Part II: Detailed Review of DMCA and Term Extension
A. TPMs and Anti-Circumvention Rules.
1. Prohibition on Circumventing Controls on Access: Regulatory Scheme.
In the House-adopted WIPO Treaty Implementation Act, anyone accessing a copyrighted work protected by a technological protection measure without the consent of the copyright owner could be found civilly and criminally liable. Libraries and non-profit educational institutions were given a very limited "browsing right" to circumvent a TPM in order to review a work that they considered purchasing or licensing. However, once the review was completed, the work could not be re-accessed.
In response to this bill, the libraries argued that the Congress was creating a new right that circumvented the protections embodied in the limitations and defenses of the Copyright Act. Even though a section of the bill stated that nothing in the act would affect the copyright defenses, if it would be illegal to access works without permission, there would be no fair use with regard to those works. Even if a subscriber paid for an online or digital subscription, after a subscription expired, it would be prohibited from passing through TPMs to make fair use of content published in the period of the original subscription. The libraries lobbied for an exception that imported the limitations and defenses of Chapter One of the Copyright Act into the new anti-circumvention rules.
The lobbying was most successful in when the House Commerce Committee took jurisdiction over the commerce aspects of the legislation. A regulatory scheme was drafted to replace the prohibition on access without consent. After further negotiations in conference, a compromise measure incorporated the House Commerce Committees structure. The key aspects of the provision are these:
Based on the results of the rulemaking, particular classes of works will be identified and for a three-year period those works will be exempt from the prohibition on circumvention to access for non-infringing copyright purposes. Thereafter, the Librarian will conduct similar on the record proceedings every three years.
2. Prohibition on manufacture, importation, sale or trafficking in certain technology, product, service, device or component.
At the heart of the anti-circumvention proscriptions is a ban on equipment or services whose primary purpose is for use in defeating technology that limits access to copyrighted works. Thus, the new law prohibits any equipment or services that
This provision was written carefully with an eye toward to the U.S. Supreme Courts Sony Betamax case, which held that devices (in that instance video recorders), which have "substantial non-infringing uses" are not copyright infringing devices and are therefore not illegal. The computer equipment industry strenuously pressed for a Sony-standard, but the Congress opted for the "primarily designed" or "limited commercially significant purposes" rather than "substantial non-infringing uses." It may be anticipated that if this standard is challenged in court, the relationship of it to Sony will be at the heart of the case.
3. Exceptions to the Prohibitions
The statute provides a number of explicit exemptions from the new anti-circumvention rules. They include the following:
4. Relationship to other laws.
The statute provides that nothing in the section dealing with access affects the rights, remedies and limitations, or defenses available in cases of copyright infringement, or any right of free speech or press for persons using consumer electronic, communications or consumer products. However, the clear intent is to recognize the obligation of the user to obtain authorized access to work. Once lawful access is obtained, the other limitations and defenses of copyright law come into play. It remains unanswered in law whether any fair use can be made of a work protected by TPMs, absent a rulemaking decision by the Librarian.
B. Copyright Management Information ("CMI")
In an attempt to ensure the integrity of any information included with digital works that the owner intends to use for management purposes, the new law prohibits the removal or alteration of CMI, or the dissemination of false CMI. "Copyright Management Information" is defined in the law to include:
Law enforcement, intelligence and other information security activities, as well as certain public performances by radio and television stations, are exempted from portions of these prohibitions.
C. Penalty Provisions
Violations of the new anti-circumvention rules can result in stiff civil penalties, injunctions against certain practices, liability for attorneys fees and even exposure to criminal liability. Persons who violate the access prohibitions are subject to awards of actual damages and profits or statutory damages of not less than $200 nor more than $2,500 per act of circumvention, or per device sold or service offered. Violators of the CMI rules can recover statutory amounts ranging from $2,500 to $25,000 per violation. A nonprofit library, archive or educational institutions can have money damages remitted, if it can establish it was not aware and had no reason to believe that its acts constituted a violation. These institutions are also exempted from any criminal sanctions, which include fines up to $500,000 and imprisonment for up to five years (doubled in the case of repeat offenses).
A. The Problem Infringing Copyright
Many Online Service Providers ("OSPs"), including libraries and educational institutions, have been exposed to a legal claim of copyright infringement without even knowing it. Under copyright rules, if someone copies, distributes or displays a copyrighted work publicly without authority of the copyright owner or its agent, then a violation of law has occurred. Even innocent infringements are subject to penalties. In addition to injunctive relief, a copyright owner prevailing in an infringement action may be entitled to receive actual damages and profits of the infringer, or statutory damages ($500-$20,000 per work infringed; up to $100,000 per work in cases of willful infringement), plus attorneys fees.
One of the developments associated with the Internet has been the fact that valuable copyrighted works, such as new musical CDs and movies, are posted at renegade sites for anyone to download without paying a fee. This practice has driven some copyright owners to the courts for relief. However, since the source of the infringements is often an untraceable site in cyberspace, an alternative defendant has been the Internet service provider that links customers to these sites.
Traditionally, common carriers have been exempt from liability for copyright infringement because they merely provide the facilities that link sender and receiver and have no control over the actual content of the transmissions. Many libraries and educational institutions feel this describes their functions for patrons, students and faculty in connection with the Internet. However, in their capacity as OSPs, libraries and educational institutions do more. Technically, they provide software to link users to sites, they store information on their server and they facilitate recordings and displays by subscribers. Each of these activities is a function recognized in copyright law as an exclusive right of copyright owners. Copyright law also holds that helping someone else to violate copyright rights is an infringement, so-called "vicarious" or "contributory" infringement. Thus, when certain commercial OSPs were accused of violating copyright law, some courts held them liable for copyright infringement. The fact that an institution is "not for profit" does not eliminate exposure to the copyright infringement claim.
B. The Solution Limiting Liability
To remedy this exposure, OSPs sought a limitation under copyright law. After two years of negotiations, the Online Copyright Infringement Liability Limitation was approved by Congress as part of the omnibus Digital Millennium Copyright Act. The new limitation greatly reduces an OSPs exposure to monetary damages. However, it does not exempt an OSP from legal action or injunctive relief. Nevertheless, it will serve as a first line of defense against a claim of copyright infringement and is in addition to other copyright defenses and limitations, like fair use. Be forewarned: the rules are complex and require strict adherence to rigorous deadlines. Unless fully complied with, an OSP, even a non-profit institution, faces loss of the exemption and exposure to potentially large copyright damage claims.
It is incumbent upon libraries and educational institutions that choose to operate as service providers to understand the rules, establish internal mechanisms for compliance and monitor these activities. It may be anticipated that this hard-fought limitation will be subject to test cases to ensure full compliance. Again, since non-profit status does not immunize an institution from liability, do not presume that a test case involving a library or educational institution will not occur. In fact, because so many computer skilled people work or study at libraries and schools, an educational test case may be desired by copyright owners to narrow this limitation.
C. Details of the OSP Limitation
1. Service Provider Defined.
The statute provides a definition of "service provider" for purposes of the limitation as follows:
(a) An entity offering the transmission, routing, or providing of connections for digital online communications between or among points specified by a user, or material of the users choosing, without modification as to the content of the material as sent or received; and
(b) A provider of online services or network access, or the operator of facilities therefor.
All entities whose services fit these descriptions, and the definition in (b) is intended to be broad, may qualify with regard to those activities. However, to the extent the functions of the OSP involve creation and posting of content, choosing recipients of messages or controlling users, the limitation does not apply and regular copyright rules respecting proper clearance, as well as fair use and other defenses, are applicable.
2. Covered Activities.
The new provision covers most transitory digital network communications. Specifically, these are:
3. Conditions for Qualifying for the Limitation.
To qualify fully for the limitation with regard to all covered OSP activities, a set of conditions for each specific function must be met. If an institution performs all the OSP functions, as most do, then all requirements must be met. The following summary breaks down the requirements into three pertinent categories.
b. Parties to the Transmissions.
4. Obligations of Copyright Owners.
The limitation has countervailing obligations of copyright owners. Among the most relevant are the following:
5. Notice and Take Down.
"Notice and take down" is an essential part of the protections sought by the content community and forms a new regulatory regime for both OSPs and copyright owners. If a content owner reasonably believes that a site misuses copyrighted matter and it notifies the OSP according to statutory procedures, or if the OSP independently becomes aware of the facts and circumstances of infringement, then the OSP must expeditiously remove the material or disable public access to the site, or face loss of the limitation.
Among the elements of the notice and takedown process are the following:
6. Good Samaritan Immunity and "Notice and Put Back."
If the OSP complies in good faith with the statutory requirements, the new law immunizes it from liability to subscribers and third parties; however, this immunity is conditioned upon affording the affected subscriber notice of the action. If a subscriber files a proper "counter notice," attesting to its lawful use of the material, then the OSP must "promptly" notify the copyright owner and within 14 business days restore the material, unless the matter has been referred to a court. The counter notice must contain these elements:
7. Special Rule Regarding Teaching and Research Employees of Public and Nonprofit Higher Educational Institutions.
The OSP regime also makes one special exception to the general rule that an institution is responsible for the acts of its employees. In recognition of the principles of academic freedom and scholarly research and the practice of administrators of higher educational institutions of not interfering with classroom work, the statute provides that faculty and graduate students employed to teach or research shall not be considered "the institution" for OSP purposes. Thus, if, for example, a member of the faculty posts infringing content, selects recipient of infringing matter or knows of an infringement, the institution would not automatically lose its right to the limitation.
The exception has three important qualifications:
If properly followed, the higher educational institution is not tainted by the actions of its teaching and research employees. As an institution, it would qualify for protection against money damage claims and could not be required to block access or terminate a subscriber. It could still be subject to other injunctive remedies, such as those involving preserving evidence.
8. Privacy Rules.
The statute also recognizes the importance of protecting the privacy of a users identity on the Internet. Procedures are established by which a complaining copyright owner may obtain the identity of individual subscribers from the OSP. The principal safeguard involves the content owners compliance with a formal court request that will be issued by federal court clerks. If followed, this process will protect the OSP from liability under federal or state prohibitions respecting release of information regarding individual subscribers.
9. Other Key Requirements.
In addition to all these rules, the OSP must
The Act makes clear that the OSP is not required to monitor its services for potential infringements. It does not have to seek out information about copyright misuse; however, it cannot ignore obvious facts.
The new rules take effect immediately; therefore, a review of current practices is urgent for all service providers and their staffs. Implementation of system should occur as soon as practicable.
For libraries, the initial issue is simple: does the institution qualify as a service provider? The statutory definition is very expansive, encompassing any provider of Internet access or online network services. Broadly interpreted, most library institutions could qualify. However, with qualification comes potential burdens, including creating a website agent, registering that individual with the Copyright Office, satisfying the other conditions of the OSP rules, and responding rapidly to notifications of infringement. Because the Copyright Office registry may make notification by concerned copyright owners fast and effective, registered OSPs may find themselves embroiled in many online copyright disputes over everything from motion pictures to individual pictures and poems. Although these works may be accessible from any computer connected to the Internet, in reality those works may have little direct bearing to works actually accessed by a particular librarys patrons. Nevertheless, if notified, the library-OSP may feel compelled to comply with the rigors of the statutory scheme. In short, for many, the burden of compliance will not be worth the benefits of limited liability.
A. DMCA Requires Copyright Office Study on Distance Education
Although not originally part of the WIPO Implementation Act debate, distance education became a topic of the negotiations because libraries and educational interests raised it. The point was that it would be inappropriate to expand legal protection for commercial owners of digital works without remedying some of the legitimate legal concerns of librarians and educators who use copyrighted works and technologies in education. With a commitment from the Chairman and Ranking Minority Members of the Senate Judiciary Committee, Senators Orin Hatch (R-Ut.) and Patrick Leahy (D-Vt.), the Senate included a Copyright Office study of distance education in the bill. The study remained part of the DMCA as finally enacted.
The provision requires the Register of Copyrights not later than six (6) months of passage of DMCA (April 28, 1999) to provide Congress with its recommendations on
how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works.
B. Topics of the Study
The study requires the Register to consult with representatives of copyright owners, nonprofit educational institutions, libraries and archives and to focus on the following factors:
C. Copyright Office Plans
On November 16, 1998, the Copyright Office released a preliminary notice, soliciting identification of interested parties and a statement of their concerns in early December, 1998. In January, 1999, the Copyright Office initiated a series of public hearings, which will conclude in February, 1999. Sometime in March, the Office will probably encourage interested parties to sit down and may mediate proposals to change the Copyright Act. It will conclude its work before the end of April, 1999. At that time, the debate is to return to the Congress.
D. Overhaul of Distance Education Rules Now Timely
For the past twenty years, the copyright aspects of distance education have been expressly regulated by Section 110(1) and (2) and Section 112. These provisions grant an exemption from copyright liability for in-class performance and displays of certain copyrighted works and the transmissions of those performances to outside locations. However, these sections were written for an era when educational communications were dominated by face-to-face teaching and one-way, closed-circuit television technology. The emergence and use of digital interactive networks has raised the issue of how to adjust copyright law to two-way, open circuitry. This study will form the factual and legal basis for Congress to organize its review of the law.
Since copyright law has not kept pace with technological changes, only the fair use provision, Section 107, has provided legal flexibility for educators uncertain of their copyright rights. This study and the Congressional reaction to it will determine the interest of lawmakers in updating distance education user rights in the digital age. Thus, there is an urgency to obtaining information about current practices. It is expected that publishers will participate actively in this proceeding.
E. View of Certain Publishers
Some commercial publishers argued in negotiations that they see little if any reason to update the rules. They will attempt to persuade the Copyright Office and Congress not only that works are and will be readily available to potential users based on reasonable licenses, but also that a broadened exemption would pose risk to creation of new works and the principles of copyright ownership. Moreover, they have on-going concerns about the potential for widespread copyright infringement of works in an educational marketplace, dominated by interactive digital networks. Then, too, many faculty and educational institutions are copyright owners and publishers. They bring a very special perspective on the issue and will have a crucial interest in the outcome of the study and any legal reform.
F. Burden of Reform on Educational, Library and Archival Institutions
More generally, libraries and educational institutions must be prepared to respond. As the advocate of reform, they will need to document their current and reasonably anticipated practices. This means they must know the extent to which licensed and unlicensed works are needed for educational purposes on digital networks. Information will also be needed regarding who posts and who accesses the digital networked material and technological protections against misuse. The economics of licensing and technological protections should also be considered.
The DMCA asks the Copyright Office to advise Congress on how to promotedistance education, but to do so in the context of balancing interests of owners and users. Thus, the Copyright Office study provides a forum for telling policymakers what is needed to expand responsible distance education practices into the next millennium. Educational institutions and libraries should take full advantage of this opportunity.
Since the passage of the Copyright Act of 1976, the library community has benefited from a limited exception from the exclusive rights of owners dealing with reproduction and distribution of copyrighted works. The limitations are in addition to other uses which libraries and other educational organizations may make under fair use and other copyright rules, and provide explicit guidance for preservation, the use of photocopy equipment on the librarys premises and for inter-library lending.
The law has been outdated for some time and in need of reform. DMCA accomplished the necessary changes. Specifically, DMCA provides the following:
Moving in tandem to DMCA was another copyright reform bill term extension. Since the 1976 Act took effect, the general term for copyright was changed from two terms of twenty-eight (28) years (an original and a renewal term) to life of the author plus 50 years or 75 years, in the case of works made for hire. Since the previous Copyright Act of 1909 also allowed that "unpublished" works could have a perpetual copyright, the 1976 reform provided for an end to unlimited protection and a gradual phase in of a term of years.
For the past three years, there has been a drumbeat by certain copyright proprietors, especially those owning movies and musical works, for extension of the copyright term. Since many European nations had added twenty years to their standard term of protection, U.S. author interests pressed for an equal amount of additional time to prevent loss of rights by American copyright interests in foreign markets. They also argued it would be a good incentive for future creativity and the balance of trade if more works qualified for more years of protection.
Although the legislation had strong support, it was held hostage to a debate over the demand of certain groups, notably restaurants and bars and religious broadcasters, to be entitled to relief from the high charges for use of music on their premises and in their broadcasts. In the closing days of the session, agreement on these pesky issues was finally accomplished and the legislation was adopted. The bill, which was renamed for the late-Republican Congressman, Sonny Bono, who died earlier in 1998, automatically extends the copyright term for all protected works to life of the author plus 70 years, and 95 years for works made for hire.
For the library community, concern about extension of the copyright term was expressed early in the debate. It was posited that the overwhelming majority of works are neither commercially exploited nor readily accessible in the marketplace after several decades, much less 75 years (or 70 years after an authors death). Yet, for researchers and scholars, access to such works from the librarys collection are important and no limitation should be made on such noncommercial uses. Moreover, with regard to already-existing works, no "extra incentive" is needed to spur creativity.
In an effort to resolve the concerns expressed by library interests, an understanding was reached regarding the ability of nonprofit libraries, archives and educational institutions to exploit older works during what constitutes the extended copyright term. It provides that during the last twenty years of the copyright term, these institutions may--
copy, distribute, display or perform a work in digital or facsimile form for purposes of preservation, scholarship, or research; as long as the institution has determined on the basis of reasonable investigation that (a) the work is subject to normal commercial exploitation and (b) a copy or phonorecord can be obtained at a reasonable price, or (c) the copyright owner or agent provides notice through the Copyright Office that (a) and (b) apply.
The exemption applies only to uses within or by the qualifying institutions, not to subsequent uses by users outside of the library or archives.
Exactly what is meant by "normal commercial exploitation" was not resolved in the final legislation. Some publisher representatives claimed that if a work is merely identified as "available for a license," that should qualify as normal commercial exploitation, even if the work has not been sold or licensed for decades and even if the publisher does not have a copy of the work. Needless to say, library interests opposed this strained interpretation.
The Copyright Office, which must create the notification system required by the law, has developed interim regulations to establish a registry of qualified works and owners. Initially, it is obligating owners to identify works and the certify their availability at a fair price or their being subject to normal commercial exploitation. The agency has set a filing fee of $50 per work covered by the notification; however, works by the same author published in the same year may be grouped together for an extra filing fee of $20 each. The Copyright Office is planning to issue final regulations after receiving public comment on a series of questions, including the definition of normal commercial exploitation and the frequency by which owners should renew their certifications of exploitation (e.g. every five years). Initial comments were due in mid-February and reply comments may be filed by April 1, 1999. Participation in this proceeding is in the interests of library, archival and educational institutions.
When the House of Representatives passed its version of the DMCA, the bill included Title V, The Collections of Information Antipiracy Act. This provision was the number one legislative priority of online publishers of data and governmental works, because their databases have been vulnerable to copying without compensation. The key legal problem identified by proponents is that under U.S. copyright law, as interpreted by the U.S. Supreme Court, "facts" (such as names, addresses, phone numbers, weather conditions, stock quotes and the like) and "works of the federal government" (including court opinions and government reports) cannot be copyrighted. With the increasing availability of this information online, the concern has developed that publishers will be unlikely to continue to invest in assembling and maintaining information if electronic copiers can snatch the data and republished it without compensation as soon as it is released.
Even though earlier drafts of the proposal had cleared the House of Representatives twice, the title became the centerpiece of controversy. Critics, including commercial publishers who need access to published data in order to create their own databases and libraries and educational interests expressed concern that information would be unreasonably locked away. Despite efforts by Senate staff to amend the House bill, no satisfactory resolution was accomplished. In light of the fact that the Senate did not hold public hearings on the legislation, the conclusion was that database protection should be removed from the DMCA and made a high priority in the 106th Congress.
The key elements of the House-passed version were the following:
As the parties negotiated in the closing days of the session, these issues emerged as open and debatable:
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Last Updated: 2007 June 21