About the DMCA (Updated)


By 1998 the US had passed its Digital Millennium Copyright Act. And partly because the US generates so much copyrightable material, and partly just because it’s the US and is a little pushy on the world stage, the DMCA became the de facto way of handling copyright protections on the internet around the world.

But what is it? Why did we need the DMCA or the WIPO copyright treaty at all?

Let’s help you Know a Little more about the DMCA.

Featuring Tom Merritt.



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Episode transcript:

It’s April 26, 1970. Joe Cocker is playing live at the Fillmore. The Jackson 5’s ABC is dominating the charts In Novo Mesto, Slovenia, little Melanija Knavs is born. And after three years of planning, the World Intellectual Property Organization has begun operations. The purpose of the specialized agency is to provide a place for countries to work together on their various intellectual property laws and rules. Copyright is of course the most well known type of intellectual property these days but it also includes trademarks and patents and such. WIPO is meant to be a clearing house. A place to try to harmonize. I’ll respect your patents if you respect mine etc. In fact its first big achievement is the Patent Cooperation Treaty which to oversimplify, made filing a patent in one country equivalent to filing in all. Now different countries still had latitude to approve or deny patents according to their own laws, but it made things a lot simpler.
WIPO made lots of other treaties and systems to make it easier to handle trademarks and service marks. It created mediation and arbitration to help resolve disputes between countries over these kinds of matters.
And in September 1995 it took up the digital agenda. Copyright came to the fore. And somehow. Some way, WIPO agreed on new rules faster than it almost ever agreed on anything. By December 1996 there was a diplomatic conference to approve the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
Those two treaties brought countries together to agree on how to handle digital copyright protection. Each country then had to pass its own law to implement the treaty.
By 1998 the US had passed its Digital Millennium Copyright Act. And partly because the US generates so much copyrightable material, and partly just because it’s the US and is a little pushy on the world stage, the DMCA became the de facto way of handling copyright protections on the internet around the world.
But what is it? Why did we need the DMCA or the WIPO copyright treaty at all?
Let’s help you Know a Little more about the DMCA.

Since the Internet became more than just something university IT experts used, worries about copyright violations on the internet have existed.
Digital content is infinitely copyable and the internet makes it infinitely transferable. That’s a nightmare for businesses built on physical limitations to copying, like music, movies and others.
To extend these older business models onto the internet, companies use digital rights management or DRM. This is a name for varying ways of trying to lock up content so that only a user who is authorized to view it can. It’s an attempt to make it not be infinitely copyable. DRM is tricky though because you have to balance access for the person who does have the right– like a paying customer– with denying access to anyone who doesn’t. Those are cross-purposes. If you leave a door open for authorized viewers, eventually unauthorized viewers will figure a way into it.
So the industry quickly turned to the law, and we get the Digital Millennium Copyright Act. Or DMCA. While this is only a law in the US, it affects anyone who publishes content in the US, such as on YouTube and has provided a model for laws like it around the world.
The problem it solves is that no matter what digital locks you put on a file, someone can figure out a way to break them. So the law fixes this by making it illegal to break them.
That’s one of the main misunderstandings about the DMCA. It doesn’t just make unauthorized access illegal. That was already illegal under copyright law. It makes circumventing access protections illegal, punishable by fines and imprisonment.
Copyright holders can seek up to $2,500 per violation, or statutory damages up to $25,000. Repeat offenders can face more. If you are accused of willfully violating the DMCA for personal or commercial financial gain, you can be tried as a criminal offender. A first-time criminal DMCA violator can face a fine of up to $500,000, up to five years in jail, or both. Repeat offenders can be fined up to a million dollars and up to ten years in prison.
Screen capturing is a circumvention of the DMCA in some cases. Keep that in mind.
The DMCA was passed as an amendment to the US Copyright Act in 1998. It implemented those two 1996 treaties of the World Intellectual Property Organization.
It makes it illegal to produce or disseminate (even if you give them away free) any device or service INTENDED to circumvent measures that control access to copyrighted works. Courts decide whether a device or service is intended to do this. Because you know, computers can do this, but it’s not their sole intention. And that’s why screen-capturing software is not just illegal.
The other aspect of the DMCA is it makes it illegal to circumvent access control EVEN IF copyright is not infringed. Yep. If you have a fair use for something, like making a backup of a DVD, it is illegal under the DMCA to circumvent copyright protection in order to make fair use of that backup. The DMCA includes some limited exemptions such as for security research and government research but they are few.
Now if you’re saying hold on I thought they changed that and made DVD copying legal. We’ll get to that later but yes and no.
There are a couple more aspects of this to keep in mind. One, is that the United States Copyright Office ( part of the Library of Congress) was given the power to create (and get rid of) further exemptions to the DMCA. So it can restore fair uses on a case by case basis. More on that later.
And then there’s a safe harbor for platforms. Online Service Providers, which includes platforms like YouTube and Facebook– are exempt from liability for their users copyright infringement as long as they follow certain procedures. Platforms keep their safe harbor by promptly blocking access to infringing material once they are notified of an infringement claim. This called the “notice and takedown” process. It also provides for a counter notification from a user who claims the material is not infringing.
There’s also an exemption for a repair person who makes limited copies solely for the purpose of repairing a machine. In other words, imaging a drive to restore it on a replacement drive doesn’t violate the DMCA. There are also some provisions for distance education, ephemeral copies made in the process of broadcasting and more.
DMCA’s Title V is my favorite. Title V provides protection for Boat Hull designs because Boat Hull designs are not covered by copyright as they cannot be separated from their useful function and therefore are better protected by patents than copyright. This section of the DMCA was added in 1998 after the Supreme Court ruled — in Bonito Boats, Inc. v. Thunder Craft Boats, Inc. –that Boat Hulls did not have copyright protection. So, immediately boat manufacturers lobbied congress to add the exemption to the DMCA. As of 2019 there have been 538 applications for registrations for Boat Hull designs under the DMCA, compared to more than 70,000 patents granted.
OK back to the notice and takedown system.
The notice and takedown system is governed by Section 512 of the DMCA.
In order to get the safe harbor protection, a service provider has to have an agent on file who takes notifications. The provider can’t have reasonably known about the infringing activity or directly benefit financially from infringing activity. In other words your main business can’t be infringement.
Ok. Now you’re a safe harbor protected platform. How does it work if somebody thinks their copyright has been infringed on your platform?
Well it works differently for every system but here are the parts required by Section 512.
The notifier must send a formal takedown request notification under penalty of perjury. They can’t knowingly lie about it.
Once a notice is received, the provider must “expeditiously take down or block access to the material.” right away. No grace period. It must also promptly notify the user that the content has been removed or disabled.
The user can then file a counter-notification, also under penalty of perjury, that its content was identified as infringing through a mistake or misidentification.
That sends it back to the notifier. If they do not file a court order against the user, the provider must restore the content within 10-14 days.
So yes. Send a takedown notice the content goes down immediately. Send a counter notice it takes 10-14 days to get it back up.
So you could abuse the system by just sending notices for anything you wanted to disappear from the internet for a couple of weeks right?
Well, those perjury conditions are meant to keep the system from being abused but in practice they’re hard to prove. Just being mistaken is not the same as perjury so you have to prove that a company KNEW the content was not infringing when it sent the notice, not just that it was mistaken. And end users are much more likely not to want to risk a perjury lawsuit than the large companies who send bulk notices, so most takedown notices are successful. But willful and malicious abuses are rare. Mistakes however, are rampant. Lots of companies have been accused of sending inaccurate bulk takedown notices, sometimes ending up affecting their own employees. But that’s not the same as perjury.
Also there is a chilling effect of the DMCA. A content-hosting platform can avoid falling afoul of the DMCA by just not hosting some material altogether. It’s not required to host it. So some companies, like YouTube have employed “informal” takedown notices that are not meant to be the legally required notices. These are usually constructed as terms of service violations. This lets them take down content without risking the perjury charge. Companies have the right to operate outside the DMCA in this way because the law can’t force them to host content they don’t want to. A copyright holder is only subject to perjury restrictions if they are following a “formal” takedown procedure. YouTube does have a method of proceeding from informal takedowns to formal ones.
For years YouTube used a bot system called ContentID to look for possibly infringing content. If the bot thought it saw a match to a database of content provided by big copyright holders, it would pull the content off the site and notify the user it had been pulled. This was not part of the DMCA.
If the user disputed the Content ID claim, YouTube would then contact the alleged rights holder. The rightsholder could release the claim and the content would go back up or could uphold the claim and the user would be notified that the rights holder still claimed the content was infringing and it would stay down. This was partly DMCA as this could also serve as the rightsholder’s formal Takedown notice. But since the bot had identified the content as infringing the risk of perjury for the rights holder was almost nothing.
If the user did not have an account in good standing or had already appealed three other claims that was it. The DMCA never entered into it for the user. YouTube just declined to host the content because they didn’t want to.
However if the user was in good standing and had not reached the appeal limit a DMCA counterclaim would then be issued to the rightsholder — with the risk of perjury for the user still there– and the normal DMCA takedown procedure would take place. The rightsholder would then have to decide whether to pursue it in court or not.
As I mentioned earlier the US Copyright Office can make exemptions to the DMCA. It regularly reviews exemptions and can add, extend or remove them.
The Copyright Office has issued exemptions to the DMCA over the years. Here’s a look at a few of them.
The first two in 2000 were for website filtering — you know like safe sites for kids kind of stuff– and preservation of damaged or obsolete software and databases.
In 2003 an exemption was given to screen readers for e-books and one for video games distributed in obsolete formats.
A brief exemption was given in 2006 for sound recordings protected by software with security flaws, specifically the Sony Rootkit. And one for unlocking wireless phones.
In 2010 an exemption for breaking DVD’s Content Scrambling System was issued for educational, documentary, noncommercial or preservation uses. Security testing of video games.
In 2012 an exemption for excerpting short portions of movies for criticism or comment was given.
In 2018 one for 3D printers if the sole purpose is to use alternate feedstock. As well as ones to expand exemptions for preservation and security research.
In October 2021, an exemption was given for repairing any consumer device that relies on software as well as medical devices and land sea and air vehicles even if they aren’t consumer-focused.
What if you’re outside the US? Why should you care? On the one hand, you’re right, US law doesn’t apply outside the US. However copyright owners from outside the US can still issue takedown notices on US sites. But the bigger thing to remember is that the DMCA is the US implementation of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The WIPO Copyright treaty was signed by 110 countries and most members of the World Intellectual Property Organization or WIPO have agreed to accept DMCA takedown notices. Think of it like this. A country adopted the WIPO treaties, the US created a system to enforce it and the country just borrows that system. It’s not that US law is enforceable in their country it’s that the US enforcement system of the WIPO treaty is a nice prepackaged way to do things. Copyright-enforcement as a service!
Some countries however are known as DMCA ignored countries. These are countries who either have not agreed to WIPO’s provisions, systematically ignore those provisions or prioritize their own copyright laws over those of the US and so websites do not honor DMCA requests.
These include Russia, Bulgaria. Luxembourg, the Netherlands, Hong Kong, Singapore, Malaysia, Switzerland, and Moldova. They are often promoted as places to host websites if you’re concerned about copyright infringement, though each carries its own set of concerns either with local laws or political speech. China doesn’t necessarily honor the DMCA, but has enough other restrictions that it’s not generally not included on these lists.
Nobody loves the DMCA but it has proved to be surprisingly stable. It’s next big test will be machine generated works like ChatGPT and the multiple text-to-image generators.
So far the discussions have been about where copyright applies but that is going to drift into the DMCA and put its uneasy equilibrium to the test.
For example, in April 2023 an unknown composer created a song and used some machine generation to make it sound like Drake and the Weeknd. The song lyrics and beats were original but the artist had used a producer tag that was not. Universal Music Group used that producer tag as the basis for copyright takedowns. But versions without the tag would force the issue.
That’s the first not the last of what will be a long discussion about where machine-generated works fall in copyright. How that discussion plays out will likely determine whether the DMCA stays standing, gets modified or rewritten altogether.
So that is the Digital Millennium Copyright Act, aka the DMCA.
It makes it illegal to circumvent copyright protection unless there is an exemption written in the act itself, or added by the US Copyright Office.
It also provides a way to try to get infringing material removed and a way for a user to combat having that material removed.
I hope this helps you understand why some content is allowed up and some is not and why you don’t see some content at all.
In other words, I hope you know a little more about the DMCA.

Know A Little More is researched, written and hosted by me, Tom Merritt. Editing and production provided by Anthony Lemos in conjunction with Will Sattelberg and Dog and Pony Show Audio. It’s issued under a Creative Commons Share Attribution 4.0 International License.

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