by : Music Law, January 2009

The DMCA: Juggling Copyrights and Unfettered Access For Ten Years

The DMCA: Juggling Copyrights and Unfettered Access For Ten Years

When the Digital Millennium Copyright Act was signed into law in October 1998, the bill included two important provisions: one surrounding Digital Rights Management (DRM), and the other granting limited liability against copyright infringement to Online Service Providers (OSP’s). For the past decade, Titles I and II of the bill have both seen a considerable amount of criticism. Some have raised the issue that the bill lacks consideration for fair use, while others have argued that DRM provisions have only succeeded in deterring users from paying for content and hampered technological innovation. Nevertheless, despite the DMCA’s imperfections, there is no question that the bill has paved the way for monumental progress in the digital marketplace.
In the years following the DMCA’s passage, services such as iTunes, Google, Myspace, and YouTube were created. In the absence of the DMCA, these services would have been at risk to an inordinate amount of infringement suits. Instead, the DMCA offered a solution that benefited both OSP’s and copyright owners.
Today, thanks to the DMCA, if a music publisher finds one of their songs posted in a YouTube video without permission, it is able to notify YouTube of the alleged infringement and YouTube has to remove that video from its site. The ‘notification,’ must be made in a ‘good faith’ belief that the work in question is in fact an infringement, and must also take into consideration whether or not the work is a fair use. YouTube is required to notify the party responsible for the post following its removal. If the user chooses to fight the claim, the copyright holder must then file a lawsuit, or else YouTube is required to repost the video. There have been some cases, such as in Lenz v. UMG, where copyright holders have sent takedown notices to OSP’s when the work was in fact a fair use and not an infringement. Such a case illustrates the bill’s imperfection. However, it would seem that the handful of cases that threaten fair use in this manner are to be expected. It is, perhaps, a small price to pay given the protection the bill provides the creators of the original work.
Though it’s hard to argue against the benefits of Title II, critics have more often sought to take the bill to task for its provisions surrounding DRM. The DMCA makes it illegal to circumvent DRM technology that controls access to copyrighted works. It also makes it illegal to manufacture equipment or software deliberately aimed at circumventing DRM technology. The combined effect of legislature supporting DRM and the introduction of DRM to the online marketplace originally provided an adequate assurance of protection for many copyright owners, and particularly to movie studios who were previously unwilling to release their work digitally. Unfortunately, implementation of DRM technology has not been handled as effectively as it could. DRM has no uniform standards, making interoperability between many files and devices impossible. The bill backed DRM technology in the hopes that it would help shape an environment in which access to copyrighted works were completely regulated by DRM technology, meaning that only users who legally obtained files containing copyrighted materials could access them. This has not yet come about, and in many cases DRM has instead been a cause of frustration to consumers who have sought to make legal use of a copyrighted work.
What DRM has provided for is some regulation over the amount of copies made of a work and perhaps, aided in preventing a complete loss of control in the online market. Still, even though more and more content providers are offering DRM-free content, both DRM and the bill itself remain relevant. Subscription services which offer limited-term downloads, rely on DRM to terminate access to files after a user has cancelled their subscription. Without DRM, it would be impossible to offer such services, and competition would be severely limited. Furthermore, totally doing away with DRM would open the floodgates for voluntary infringement, and introduce even more chaos into an already saturated market. DRM may be losing its popularity in some instances, but will most likely remain a major player in the digital world and live under the umbrella of the DMCA for many years to come.
The DMCA was the essentially the first piece of major legislation that sought to lay the groundwork for the future of the digital marketplace. Despite its flaws, the DMCA has been effective in its first 10 years on the job. There is no doubt, however, that copyright law itself is in much need of a redraft, and it is imperative that lawmakers work to institute viable solutions that benefit all parties. With CD sales continuing to slump and digital pirates running rampant, it is now more important than ever to build upon existing laws to balance the potential of new technological with the needs of creators.
References
Mitch Glazier, “A Vital Compromise” Billboard 8 November 2008
Fred Von Lohmann “A Flawed Bet” Billboard 8 November 2008
Robert P. Merges, “The Continuing Vitality of Music Performance Rights Organizations,” Creative Industries in Transition: New Directions for the Digital Era Symposium Series, The George Washington University Law School, 18 June 2008
The Digital Millennium Copyright Act
Lenz v. Universal, http://www.eff.org/cases/lenz-v-universal

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