Digital Millennium Copyright Act (DMCA) of 1998

Our everyday lives are increasingly transformed by digital content, software, and the "Internet of things" - networks of smart devices, from wearable technology to self-driving cars, that create, share and act on data in real-time. 

The Internet of Things is made up of activity trackers, smartwatches, smartphones, and other devices.

At the same time, trends in technology sales and intellectual property law are shifting our relationships to content, software, and devices.

Ownership of physical media, like books and DVDs, is regulated by copyright's First Sale Doctrine. First Sale Doctrine transfers the rights to sell, display, or dispose of a particular copy of a legally purchased work to the owner.

Use of digital media, like .mp3 music files and .epub book files, is usually regulated by End User License Agreements or EULAs. In many cases, users are buying the right to license and use digital content, rather than to own that content. This means that the copyright holder, including large companies like Apple or Amazon, retains ownership and control over the content, and how users can interact with it.

U2's Bono responds to criticism from an iTunes user regarding the free and automatic download of their album Songs of Innocence in 2014.

If you experienced the frustration of losing music files when updating your smartphone or finding music that you really didn't want in the first place (which happened to Apple iTunes users in 2014) then you understand some of the implications of user rights in the Internet of Things.

The Digital Millennium Copyright Act was enacted to implement international intellectual property treaties and to address the copyright implications of new digital content and technologies.

Two provisions of the law have controversial effects on everyday use of technology and digital content:

Section 103 - Copyright protection systems & copyright management information AND

Section 202 - Limitations on liability for copyright infringement

Section 103: Circumvention of copyright protection systems

This section of the DMCA modifies copyright law to make it illegal to "circumvent a technological measure that effectively controls access to a [Copyright] protected work."

Intended to prevent piracy, Section 1201 of the Copyright law also made it illegal to unlock or 'jailbreak' a smartphone to switch service providers, to reverse-engineer an orphaned video game to play using an emulator, and to access, repair, or modify electronics in cars without manufacturer approval.

This section also makes it illegal to produce or distribute tools that enable users to circumvent digital rights management (DRM) or other access control technologies on media like DVDs or Blu-ray discs, e-books, and digital music files.

The Librarian of Congress at the U.S. Copyright Office considers exemptions to these anti-circumvention rules every three years. The Electronic Frontier Foundation (EFF) is a digital rights advocacy organization which has worked with the U. S. Copyright Office to create exemptions for video remixing and cell phone unlocking. The EFF sought, and in 2015 the Librarian of Congress adopted, six exemptions which are:

  1. access to vehicle electronics for security research
  2. access to vehicle electronics for maintenance and repair
  3. unlocking and jailbreaking mobile devices
  4. circumventing DRM measures for extracting clips from audiovisual sources
  5. remixing digital works, and
  6. restoring access to video games no longer supported by their developers.

The Librarian of Congress also created exemptions for

  • circumventing DRM to enable the use of digital literary texts with assistive technology
  • unlocking of wearable wireless devices
  • jailbreaking smart TVs
  • circumventing technological security measures on voting machines and medical devices for safety and security research
  • circumventing technological security measures on 3D printers to allow for the use of alternative printing materials.

Without these exemptions, which expire and must be renewed every three years, these activities are considered illegal violations of copyright as a result of the DMCA.

Section 202: Limitations on liability for copyright infringement

Section 202-512 of the Copyright law was enacted by the DMCA to protect online service providers from liability for copyright infringements that might occur when protected material is uploaded, stored, or transmitted through their systems. Specifically, online service providers like Google, Inc. cannot be sued for monetary relief by copyright holders when users upload copyright-protected clips to YouTube.

Google provides a report of DMCA Takedowns, or requests to remove content due to copyright.

In return for this liability protection, service providers are required to "remove, or disable access to" copyrighted material when notified of an infringement by a copyright holder. This section of the DMCA gave rise to the DMCA Takedown Notice.

DMCA and Digital Innovation

Some analysts argue that the additional intellectual property protections for digital content, combined with the 'safe harbor' provision for service providers, under DMCA created a market for digital media and Web 2.0 platforms that support user-generated content. David Kravets noted that,

"Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul."