Menu Bar
Netlitigation
Topics
Brought to you by Netlitigation.Com


Submissions

Written Materials From Ken Carson's Recent MCLE Presentation

MCLE COMPUTER AND TELECOMMUNICATIONS LAW 1999 UPDATE:

THE DIGITAL MILLENIUM COPYRIGHT ACT

1. BACKGROUND

a. The Digital Millennium Copyright Act ("DMCA") was introduced in the House on July 29, 1997 as the "WIPO Copyright and Performances and Phonograms Treaty Implementation Act of 1997." Signed into law on October 28, 1998.

b. Purposes:

i. to provide incentives for copyright owners to make their work available on the internet;

ii. to implement the WIPO Copyright Treaty; and

iii. to implement WIPO Performances and Phonograms Treaty.

c. Given the Administration's efforts to draft law that accommodates copyright law to the internet and new technologies, the DMCA makes relatively modest changes to copyright law, in part because:

i. United States copyright law was already in conformance with much of the WIPO Copyright Treaty. For instance, computer software was already the subject of copyright. Similarly, most rights afforded copyright owners by the WIPO Copyright Treaty, such as the right of distribution, were already granted under United States copyright law.

ii. Intense public and political debate on issues such as RAM-caching and database protection may have prevented more sweeping changes.

2. TITLE I (TECHNICAL AMENDMENTS): ADDITIONS TO THE SUBJECT MATTER OF COPYRIGHT

Adds the following to the subject matter of copyright, bringing United States copyright law into conformance with many other nations' copyright laws:

a. A sound recording fixed in a tangible medium of expression, if it was first fixed in a treaty party; and

b. A pictorial, graphic or sculptural work that is incorporated into a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; but

c. No works other than sound recordings are eligible for copyright protection in the United States solely because they are covered under the Geneva Phonograms Convention or WIPO Performances and Phonograms Treaty.

3. TITLE I (NEW CHAPTER 12 OF TITLE 17, UNITED STATES CODE): IMPLEMENTING THE WIPO COPYRIGHT TREATY:

a. PROHIBITING CIRCUMVENTION OF TECHNOLOGICAL MEASURES. DMCA, Section 1201

i. The prohibitions.

(1) Regarding Technological Measures Preventing Access: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." Sec. 1201(a)(1)(A).

(a) Effective date is two years after enactment of the DMCA. During those two years, the Librarian of Congress will determine whether this section will adversely affect users of any particular class of copyrighted works in their non infringing uses.

(b) The Librarian of Congress will publish those class of works for which it has determined that there are such adverse affects, and to which it determines the prohibition shall not apply. In making that determination, the Librarian will consider factors including, but not limited to the impact that the prohibition would have on "criticism, comment, news reporting, teaching, scholarship, or research;" and on the "market for or value of" the copyrighted works. Sec. 1201(a)(1)(C).

(2) Further Provision Regarding Technological Measures Preventing Access:

Prohibiting the manufacture, importation, offering to the public, or trafficking in any "technology, product, service, device, component, or part thereof" that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title. Sec. 1201(a)(2). This prohibition also applies to such products and services having only limited commercially significant purpose or use other than to circumvent such technological measures, and prohibits the marketing of such products and services. Id.

(3) Regarding Technological Measures Preventing Copying: "No person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that--(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects" the copyright owner's rights; or (B) has only limited commercial use other than to do so; or (C) is marketed for use in doing so. Sec. 1201(b).

ii. "Fair Use" Provision:

"Nothing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title." Sec. 1201(c)(1).

iii. Contributory Liability

The prohibitions in this section do not "enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof." Sec. 1201(c)(2).

iv. "No mandate" Provision

The design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product need not "provide for a response to any particular technological measure . . . ," so long as the part or component is not otherwise prohibited under this Chapter. Sec. 1201(c)(3).

v. Exemptions

(1) Nonprofit, educational exemption for purposes of determining whether or not to acquire a copy of that work for permissible uses. Sec. 1201(d).

(2) Law enforcement exemption. Sec. 1201(e). Includes recently-issued Presidential Decision Directive 63 on Critical Infrastructure Protection, which, itself, contains a number of initiatives to ensure that the United States takes all necessary measures to swiftly eliminate any significant vulnerability to both physical and cyber attacks on the nation's critical infrastructures, including especially the "cyber systems."

(3) Reverse engineering exemption, for the sole purpose of attaining/achieving interoperability. Sec. 1201(f)

(4) Encryption research exemption. Sec. 1201(g)

(5) Exemption regarding a technology, product or service with the sole purpose of preventing the access of minors to material on the Internet. Sec. 1201(h)

(6) Exemption for the circumvention of technology that has the capability to collect or disseminate personally identifying information reflecting a person's online activity. Sec. 1201(i).

(7) Security testing. Accessing a computer for assessing its security is not a violation, with authorization of owner of the computer. In determining whether this exemption applies, consider whether the information derived therefrom was used to promote the security of the owner or operator of the computer; and whether the information gained in the security testing was "used or maintained in a manner that does not facilitate infringement" under copyright law. Sec. 1201(j).

(8) Certain Analog devices. Requires analog video cassette recorders, 8 mm format analog video cassette camcorders, and other analog machines, to conform to "automatic gain control copy control technology" and/or the "four-line colorstripe copy control technology." Sec. 1201(k).

b. PROTECTING THE INTEGRITY OF COPYRIGHT MANAGEMENT INFORMATION. Sec. 1202.

i. Copyright management information is information conveyed in connection with copies or phonorecords of a work such as the title and identifying information; the name of, and identifying information about the author of the work; the name of the owner of the copyright; terms and conditions for use of the work, and other information set forth in Sec. 1202(c).

ii. It is a violation of this Act to provide copyright management information that is false or to distribute or import for distribution copyright management information that is false, if such act is done knowingly or with the intent to induce, enable, facilitate or conceal infringement. Sec. 1202(a).

iii. It is a violation to intentionally remove or alter copyright management information; or to distribute or import copyright management information knowing it has been removed without authority of the copyright owner or the law; or to distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority. Sec. 1202(b).

iv. Exceptions and Limitations

(1) "This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State or a political subdivision of a State." Sec. 1202(d).

(2) Limited liability for broadcasters, whether analog or digital, under certain circumstances.

c. DMCA provides for both civil and criminal penalties.

d. "Savings clause" states that nothing in the Act diminishes the privacy protection of individuals in their use of the internet.

e. The Register of Copyrights is to conduct an evaluation of the impact of these amendments to copyright law on electronic commerce and technological development.

4. TITLE 2: LIMITING LIABILITY FOR ONLINE SERVICE PROVIDERS

[Will be addressed elsewhere in this program.]

5. TITLE 3: COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

a. Permits owner or lessee of a machine to authorize the making of a copy of a computer program by activation of the machine "that lawfully contains an authorized copy of the computer program," for the sole purpose of maintenance or repair of the machine, so long as the copy is destroyed after the repair is done.

6. TITLE 4: MISCELLANEOUS PROVISIONS

a. Ephemeral recordings. Amends section 112 of Copyright Act by allowing "webcasters" to make a copy of recordings before digital transmission. This is necessary for webcasters to be able to "broadcast" on the internet.

b. The Register of Copyrights is to conduct a study on distance education and submit to Congress recommendations on how to promote distance education through digital technologies.

c. Exemptions for libraries and archives.

d. Scope of exclusive rights in sound recordings. Amends section 114 of the Copyright Act.

i. Webcasters are not eligible for the exemption to which "nonsubscription transmissions" are entitled, from the need to obtain record company licenses before "transmitting" music.

ii. Creates statutory licensing scheme for webcasters so they do not have to obtain their own licenses from individual record companies.

e. In agreements through which copyright in a motion picture is transferred, "the transfer instrument shall be deemed to incorporate the assumption agreements applicable to the copyright ownership being transferred that are required by the applicable collective bargaining agreement . . . ." Sec. 4001(a).

(7) TITLE 5: PROTECTION OF ORIGINAL BOAT HULL DESIGNS

a. Adds Chapter 13 to Title 17 of the United States Code, protecting functional/utilitarian aspects of boat hulls.

up


Return to community page for: Business Continuity Planning, Cobit..


Copyright SRBC
1998 up