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?
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.
“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
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
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.
That’s the meat of Title II.
Title III –Computer Maintenance Competition Assurance Act
Title IV – Miscellaneous Provisions
Title V – Vessel Hull Design Protection Act
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.