What is the DMCA? A Look at the Digital Millennium Copyright Act

If you’ve uploaded a video to YouTube only to have it taken down, you’ve dealt with the Digital Millennium Copyright Act (DMCA).

If you’ve ever been on Napster, Grokster, Bearshare, Kazaa, Morpheus, iMesh, LimeWire, The Pirate Bay, or any other torrent sharing site, you’ve dealt with the DMCA.

If you’ve streamed TV episodes through a website only to see the website disappear overnight, you’ve seen the DMCA in action.

So the DMCA basically stops someone from sharing copyrighted content online?

Yes, but there’s a bit more to it.

So, what is the DMCA, really? It’s copyright law, right?

Kind of.

What is the DMCA

The DMCA is a copyright law enacted in 1998, created to control access to copyrighted works, prevent copying of digital content, prevent circumvention of digital rights management (DRM), allow for backups of computer programs for archival purposes when repairing or maintaining a computer, protect websites hosting user-generated content, and protect boat hull designs.

Yes. Title V of the DMCA protects the copyright of boat hull designs. Is it relevant to the rest of the DMCA? Not really. Most likely, boat manufacturers lobbied a legislator to have that provision added.

If you speak legalese and are looking to read something while you’re trying to fall asleep, you can read the full text of the DMCA. For the rest of you, here’s a quick rundown:

“Greatest Hits” of the DMCA

  • Protects YouTube from liability when users upload content that infringes copyright
  • Prevents phone and game console owners from jailbreaking or otherwise modding their devices for the purposes of infringing copyright (although, thanks to a recent opinion, you can now jailbreak your phone to switch carriers or mod your game console as long as it’s for a non-infringing purpose)
  • Prohibits resale of software, as it is a license and not subject to the first-sale doctrine, according to a recent Ninth Circuit case, Vernor v. Autodesk
  • Allows temporary copies of software to be made while repairing a computer
  • Protects boat hull designs!

For more on the history of the DMCA, we’ll make a follow-up post.

There are five titles to the DMCA. It’s best to think of each title as completely separate, since they don’t really have much to do with each other.

Title I - WIPO Copyright and Performances and Phonograms Treaties Implementation Act

Title I to the DMCA implements the WIPO treaty. The most well-known element is the anti-circumvention provision, which prohibits using any technology or device for the purposes of circumventing copyright protections. You can’t get unauthorized access to or copy copyrighted works. Selling technology that helps people circumvent copyright protections is also illegal.

For example, you can’t make or sell software that exists solely for the purpose to get around DRM, as the court held in Real Networks v. DVD Copy Control Association, where Real Networks’ RealDVD software allowed users to copy their DRM protected DVDs.

There was another famous case recently, Sony v. George Hotz. George Hotz, aka Geoht, hacked the Playstation 3 console, enabling to to play a Playstation 2 emulator and homebrew games. Sony sued, alleging that Hotz violated Title I of the DMCA. The parties ultimately settled out of court.

Title II - Online Copyright Infringement Liability Limitation Act

Title II added a new section (512) to the Copyright Act, effectively protecting websites and other online service providers from liability under copyright law when a user uploads or shares infringing material. Section 512(c) protects companies like YouTube, Google, and internet service providers when infringing content is found on their websites or hosted on their systems, uploaded by other users. As long as the service providers get a DMCA takedown notice from the copyright holder when the copyright holder discovers infringing content on the site and the host promptly removes it when informed about it, the host cannot be held liable.
This is the reason you may see videos on YouTube with tags that they are no longer available. Copyright owners send takedown requests to YouTube when they see the content they own appearing unauthorized on YouTube. YouTube takes it down on request. When people hear about this, they often say “what about fair use?” But that’s something that needs an entire discussion devoted to it, saved for a later blog post.

The reason most of you are probably here is because your content may have been taken down on YouTube, so that’s why we’ll use this as the example.

Just a quick disclaimer: the author submitted a brief in support of YouTube in the Second Circuit case Viacom v. YouTube.

So, in short: the DMCA says that YouTube doesn’t infringe the copyrights of content owners when YouTube users upload infringing content so long as YouTube removes the infringing content when they get a DMCA takedown notice from the copyright owner.

Related: YouTube Prevails in $1 Billion Viacom Lawsuit

That’s the meat of Title II.

Title III –Computer Maintenance Competition Assurance Act

This one is short and simple: While repairing your computer, you can make temporary, limited copies of your software. For example, if your computer crashes and you want to back up your hard drive to put on a new computer, you can without being liable for copyright infringement of the software you’ve copied, provided that after you’re done maintaining or repairing your computer the software is deleted. That’s about it. The whole thing is less than a page. It’s the shortest section of the DMCA.

Title IV – Miscellaneous Provisions

This section is a mishmash of everything else the drafters wanted to include. It creates laws for broadcasters, makes rules for distance education, exempts nonprofit libraries and archives from certain provisions, and creates a collective bargaining agreement for movie rights. 

Title V – Vessel Hull Design Protection Act

It’s in the DMCA but it’s not digital. Go figure. This section grants copyright protection to boat hull designs. Before this, boat hulls were considered utilitarian and could not be protected by copyright law.

So, there’s a lot to the DMCA, but it’s the first two titles that are most well-known and have the largest effect on consumers. Unless, of course you’re reading this thinking “I need to copyright my boat hull design.” I hope this gives you a good basic understanding of the DMCA.