1998 - 2012

Highlight: Congress Passes the Digital Millennium Copyright Act

On October 28, 1998, President Bill Clinton signed the Digital Millennium Copyright Act (DMCA). The Act provided for implementation of the WIPO Copyright Treaty and the Performances and Photogram Treaty, limited online infringement liability for internet service providers, created a form of protection for vessel hulls, and clarified the role of the Copyright Office.

The DMCA provision governing online infringement, codified in 17 U.S.C. § 1201-1205, makes it illegal to circumvent technological measures used to prevent unauthorized access to or copying of copyrighted works, particularly books, movies, videos, video games, and computer programs. The DMCA created a safe harbor for online service providers (OSPs) against infringement liability for storing copyrighted material at the direction of a user, so long as the OSP engaged in certain procedures to address potentially infringing works. Known colloquially as a “notice-and-takedown” procedure, the OSP must first designate an agent to receive notices by copyright holders of claimed infringement. Upon effective notice, a service provider must expeditiously remove, or disable access, to the allegedly infringing material and send notice to the user who posted the material. The user then has the option to send a counter-notice, claiming that the material was taken down in error. The OSP then must notify the original claimant of the counter-notice, and may repost the material at issue within 10-14 business days unless the claimant files suit against the user. The Copyright Office maintains a list of all registered designated agents, which can be found here.

The DMCA also obligates the Librarian of Congress, upon the recommendation of the Register of Copyrights, to engage in a rulemaking proceeding every three years to adopt exemptions from the general prohibition against circumvention. The Sixth Triennial Section 1201 Proceeding was completed in 2015, and provides exemptions, subject to certain conditions, for twenty-two different types of uses, from adapting digital literary works for use for the print disabled to accessing software in cars and farm equipment for the purpose of diagnosis, repair, and personal modification. For a full list of exemptions to the DMCA, along with analysis of the exemptions and a full rulemaking history, click here.