Digital Law Online: DMCA Technological Protections

After the adoption of the WIPO Copyright Treaty, the focus again shifted to having Congress pass legislation to protect copy control and rights management systems. But this time, it was under the banner of having to ratify and implement the WIPO Copyright Treaty, to provide an example to the other countries in the world.

The Internet service providers were also in a better position, because the content providers really wanted the WIPO Copyright Treaty. While the Clinton Administration and the content providers proposed anticircumvention and rights management provisions without exceptions for conduct that should not be violations, Congress added a number of specific exceptions to the DMCA addressing important aspects of the Internet. The result was the safe harbor limitations to copyright infringement suits against service providers, codified in Section 512. {FN140: 17 U.S.C. §512}

The anticircumvention and rights management provisions are an attempt to support in law reasonable techniques for protecting a copyrighted work. They outlaw the use and distribution of tools that can get around such protection techniques. It is not necessary for the technique to be invulnerable to all attacks, because the vast majority of people will not have easy access to the tools that could circumvent the protection.

These provisions are related to, but separate from, copyright. Even the name for the improper act is different – you “infringe” a copyright, but you “violate” the anticircumvention or rights management provisions. Therefore, if you circumvent a protection system, you violate the anticircumvention provisions even if your eventual use of the copyrighted work is not an infringement because it is a fair use or falls within another exception.

The penalties for circumventing a protection measure are much like copyright infringement: civil actions yielding injunctions and monetary damages (either actual or statutory) and criminal penalties with fines up to $1,000,000 and imprisonment of up to ten years for repeat offenses. But while that seems draconian, in reality the federal sentencing guidelines limit the penalties, with the maximum only for the most egregious violations causing millions of dollars in damages.

While the DMCA was being considered by Congress, beginning in 1997 and ending with it becoming law in October 1998, many opponents predicted that it would have dire consequences. But in the over-three-years since its enactment, there have been only a few cases brought under it, and most of those in instances of high-profile anticircumvention activities. While future cases will give a clearer interpretation of the DMCA’s provisions, right now the best guidance to understanding them comes from the congressional reports that accompanied the DMCA’s passage.

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