The Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) was enacted mainly to amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty.

DMCA criminalizes production and dissemination of technology, devices, or services that are used to circumvent measures that control access to copyrighted works (DRM) and criminalizes the act of circumventing an access control, even when there is no infringement of copyright itself.

DMCA amended title 17 of the U.S. Code to extend the reach of copyright, while limiting the liability of Online Providers from copyright infringement by their users. DMCA augmented the penalties for copyright infringement on the Internet.

But the DMCA's principal innovation in the field of copyright, the exemption from direct and indirect liabilty of internet service providers and other intermediaries was separately addressed, and largely followed, in Europe by means of the separate Electronic Commerce Directive.

DMCA Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act

WIPO Copyright and Performances and Phonograms Treaties Implementation Act has two parts.

The first part includes works covered by several treaties in US copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

The second part is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy prevention systems ("technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention commonly known as Macrovision built in, effectively giving Macrovision a monopoly on the analog video recording copy prevention market.

DMCA Title II: Online Copyright Infringement Liability Limitation Act ("OCILLA")

The Online Copyright Infringement Liability Limitation Act creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent.

OCILLA also includes a counter-notification provision that offers OSPs a safe harbor from liability to their users, if the material upon notice from such users claiming that the material in question is not, in fact, infringing.

OCILLA also provides for subpoenas to OSPs to provide their users' identity.

DMCA Title III: Computer Maintenance Competition Assurance Act

Computer Maintenance Competition Assurance Act modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer.

Anti-circumvention exemptions

17 U.S.C. 1201(a)(1) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology.

Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make noninfringing uses of copyrighted works.

Exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian.

Exemptions expire after three years and must be resubmitted for the next rulemaking cycle.

The current exemptions:

Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities. This exemption was made because Sony had distributed a highly malicious rootkit as part of a music compact disc copy protection.

There are efforts in Congress to modify the Act. Rick Boucher, a Democratic congressman from Virginia, is leading one of these efforts by introducing the Digital Media Consumers' Rights Act (DMCRA).

The DMCA has been criticized for forcing all companies producing analog video equipment to support the proprietary copy protection technology of a commercial firm, Macrovision. The producers of video equipment are forced by law to support the Macrovision technology.

The DMCA has had an impact on the worldwide cryptography research community, since an argument can be made that any cryptanalytic research violates, or might violate, the DMCA.

The arrest of Russian programmer Dmitry Sklyarov in 2001, for alleged infringement of the DMCA, was a highly publicized example of the law's use to prevent or penalize development of anti-DRM measures.

While working for Elcomsoft in Russia, Dmitry Sklyarov developed 'The Advanced eBook Processor', a software application allowing users to strip usage restriction information from restricted e-books, an activity legal in both Russia and the United States.

Under the DMCA it is not legal in the United States to provide such a tool. Sklyarov was arrested in the United States after presenting a speech at DEF CON and subsequently spent several months in jail.

The DMCA has also been cited as chilling to legitimate users, such as students of cryptanalysis and security consultants such as Niels Ferguson, who has declined to publish information about vulnerabilities he discovered in an Intel secure-computing scheme because of his concern about being arrested under the DMCA when he travels to the US.