Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (DMCA), passed in 1998 and effective in 2000, updates federal copyright law to meet the demands of the electronic age, particularly in regard to copyright infringement on the Internet. The DMCA contains two pieces of legislation, both of which are discussed in this entry, along with applications to education and related legal cases.
The first part of the legislation, the World Intellectual Property Organization (WIPO) Copyright and Performances and Phonograms Implementation Act, prohibits the circumvention of technologies that have been installed to prevent online infringement. For example, copyright holders often install programs that require computer users to enter passwords in order to access certain files or applications. Further, copyright holders may encrypt data or files to prohibit access by outsiders. The DMCA prohibits circumvention of these “technological protection measures.”
Section 1201 of the Copyright Act distinguishes between technological measures that restrict access to copyrighted works and those that restrict copying. This categorization is designed to ensure the continuation of fair use. In some situations, copying works is considered fair use, while in others, unauthorized access may be deemed unfair.
The DMCA targets the manufacture, distribution, and use of computer programs designed to circumvent or decrypt protection devices. Even so, there are four prominent exceptions applicable in education settings. In other words, no liability will attach under the DMCA if, in good faith, users as outlined below access material that would otherwise be inaccessible under the law. First, the law allows circumvention by nonprofit libraries, archives, or educational institutions in cases where the sole purpose of the circumvention is to determine whether to obtain authorized access to works. This exception applies only when libraries are open to the public; as such, it applies most likely to higher education settings and not in K–12 settings.
Second, the law permits encryption research. Third, the law allows testing of technological devices that are designed to prevent access by minors to certain Internet material. This exception may be particularly applicable in K–12 settings, where school officials are trying out filtering software at school. Finally, the law permits testing the security of computers, computer systems, or computer networks.
The second piece of legislation in the DMCA is the Online Copyright Infringement Liability Limitation Act, which protects Internet service providers (ISPs) against infringement liability for the acts of their subscribers. Under this part of the law, computer users who store (long term or short term) or transmit material unlawfully obtained from the Internet face liability for infringement; the users’ ISP is not liable as long as the ISP plays no role in the infringing conduct. Once the ISP discovers the infringing activity, it must act to remove the content and disable the access to it. Limitations on liability apply only to those ISPs that have established and implemented policies, such as school acceptable use policies, that provide for the termination of accounts, subscriptions, and computer use privileges of repeat violators.
Litigation under the DMCA is limited, especially in educational settings. However, it is instructive. For the most part, the challenges have been from computer programmers and software developers who argue that the DMCA violates the First Amendment free speech clause. And, while courts have agreed that circumvention software developed, distributed, and used constitutes speech, they have held that the provisions of the DMCA are valid restrictions on that speech, in that the DMCA is designed to support the rights of copyright holders and overall ethics in commerce (Universal City Studios, Inc. v. Corley, 2001).
A party that is injured under the DMCA is entitled to injunctive relief and monetary damages. Note, though, that special protection exists for nonprofit libraries, archives, and educational institutions, where monetary damages may be limited or negated when the violator proves that he or she had no knowledge or reason to know of the infringement. School leaders should pay attention to the provisions of the DMCA, because there are technologically savvy students who may take advantage of their schools as ISPs. Unauthorized copying and downloading of material such as music and movies is rampant among students, as facts in the well-known A&M Records v. Napster (2001) and In re Aimster Copyright Litigation (2003) cases reveal. Only those ISPs actively enforcing policies that promote compliance with copyright laws can take advantage of the DMCA’s limitations on liability.
Patrick D. Pauken
- Daniel, P. T. K., & Pauken, P. D. (1999). The impact of the electronic media on instructor creativity and institutional ownership within copyright law. Education Law Reporter, 132, 1–43.
- Daniel, P. T. K., & Pauken, P. D. (2005). Copyright laws in the age of technology: Changes in legislation and their applicability to the K–12 environment. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), The principal’s legal handbook (3rd ed., pp. 441–453). Dayton, OH: Education Law Association.
- Daniel, P. T. K., & Pauken, P. D. (2005). Intellectual property. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 347–393). Dayton, OH: Education Law Association.
- A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
- Copyright Act, 17 U.S.C. §§ 101 et seq.
- In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).
- Online Copyright Infringement Liability Limitation Act, 17 U.S.C. § 512.
- Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
- WIPO Copyright and Performances and Phonograms Implementation Act, 17 U.S.C. §§ 1201 et seq.