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Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet.[1][2] Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries. This exemption was adopted by the European Union in the Electronic Commerce Directive 2000. The Information Society Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

The Digital Millennium Copyright Act (DMCA) had its basis as part of the United States’ commitment to comply with two treaties passed by the World Intellectual Property Organization (WIPO) in December 1996 that dealt with the nature of copyright with modern information systems such as the Internet. The WIPO Copyright Treaty identified numerous electronic works as eligible for copyright protection, and stated that circumvention of technological measures used to secure electronic works was to be prohibited. The WIPO Performances and Phonograms Treaty worked to normalize the copyright protections for performed works as uniformly for member states as possible.[3]

The process of ratifying the treaties for the United States was the first major piece of copyright-related legislation since the Copyright Act of 1976, and led to numerous interested groups to express concerns for how the treaties should be implemented, including content producers and distributors, technology manufacturers, online service providers, researchers and academics, and consumer groups. Some groups urged for stronger copyright enforcement with others sought more relaxing of rules. As the bill was being formed in the Commerce Committee in the House of Representatives, the committee recognized that the final bill would be far more encompassing than just copyright reform but would be establishing key principles in the digital commerce marketplace.[3]

Background and legislative history

In evaluating the enforcement of the WIPO Copyright Treaty with its anti-circumvention provisions with U.S. copyright law, lawmakers recognized that traditionally copyright law did not generally account for the medium of the work, as it was generally impossible to make an exact copy of an analog work previously, and currently law was only concerned with unlawful acts of copyright violations. Since digital technology could allow for infinite numbers of exact copies of works to be made, the lawmakers agreed they had to extend copyright to include limits on devices and services which could be used for anti-circumvention in addition to acts of anti-circumvention.[3] In establishing this, the lawmakers also recognized this would have a negative impact on fair use without exceptions, with electronic works potentially falling into the public domain but still locked beyond anti-circumvention measures, but they also needed to balance the rights of copyright holders. The DMCA as passed contained some basic fair use allowance such as for limited reverse engineering and for security research. Lawmakers opted to create a rulemaking mechanism through the United States Copyright Office to review the state of copyrights and fair use to make limited classes of allowance for fair use which would be considered lawful means of using anti-circumvention technology.[3]

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