Digital Copyright Issues

16 August 2001
On Oct. 28, 1998, then-President Clinton signed the Digital Millennium Copyright Act (DMCA) into law. Think of it as the Federal government's first shot over the bow at dealing with the many intellectual property issues raised by our new digital world.

In theory, the Internet could be the perfect way to bring information into homes and businesses. No more runs to the library to borrow a book or the store to buy a CD. The problem with translating the theory to reality is that this new digital medium raises many troubling and fundamental questions that remain largely unanswered. For example, should we allow libraries to "loan" a digital copy of a book and do we want Napster to make music freely available on the Net?

The simple reality is that the Net is still pretty new. This thing that comes into millions of our homes with websites, music, entertainment, chat, information, e-commerce and the list goes on endlessly, may feel like it's been around a long time, but it hasn't.

Just five years ago, it would have been fair to describe the entire body of Internet law as a pamphlet. Now, we're up to a few volumes, but it's going to take many more years for it to develop to the point where the law answers even fundamental Internet law questions. In 1998, Congress took a shot at adding to a sparse body of law.

The DMCA does things like make it illegal to "manufacture, import, offer to the public, provide, otherwise traffic in (sounds like we're dealing with illegal narcotics here) any technology, product, service, device, component -- that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work."

In plain English, the DMCA makes it illegal to circumvent copyright protections built into software to prevent piracy and also prohibits the manufacture, sale, or distribution of code-cracking devices used to unlawfully copy software.

There are some exceptions to these prohibitions. For example, you can circumvent copyright protection devices to conduct encryption research and test computer security systems. Also, nonprofit libraries, archives and educational institutions get their own limited exceptions.

If you're getting the feeling that this is a complex and detailed statute, you're right.

But look at what Congress had to tackle. The issues are intrinsically complex, inherently new, and you have competing and divergent interests everywhere.

Libraries want to loan and archive literary works. Publishers want to sell them. Record companies want to package CDs with groups of songs. Web surfers want to download (and pay for?) only the songs they want. No more flip side of that 45 that nobody listened to anyway.

Then you have Internet service providers and issues that they raise. For example, let's say you own a sports-oriented website where you have chat rooms, bulletin boards where people can post materials and you do other things that create a sense of community among your users. What happens when one of your users posts a copyrighted photo of a baseball game?

In similar situations, copyright owners have sued website owners for copyright infringement. Basically, their claim is that since it's your website, you're responsible for the infringement. The problem for the website owner is that she has no practical way to control all the zeros and ones flowing upstream and downstream to and from her site.

DMCA took a stab at creating an equitable solution for all those concerned by limiting the liability of ISPs if they do what the DMCA requires. If you let people post to your website and you haven't complied with the DMCA, then this is your wake-up call. This should be a major priority for you. After all, it's not often that Congress gives you a checklist of things to do to protect yourself from liability.

It starts by you designating an agent to receive notices of alleged copyright infringement. You should send the name and address of this agent to the Copyright Office and post the information on your site.

Next, you should have your tech lawyer develop a policy for dealing with alleged infringement. It should include a policy for terminating repeat offenders. You should post this policy on your website.

Then you'll want to set up an internal group to deal with complaints about alleged infringement. The DMCA requires you to "respond expeditiously to remove, or disable access to, the material that is claimed to be infringing."

The DMCA then gives an ISP a safe haven by providing that an ISP isn't liable for taking down any material if it believes in good faith to be a copyright infringement. This is true even if a court ultimately decides that it wasn't an infringement.

While the DMCA created as many questions as it answered, I've got to give Congress and the Clinton administration credit for taking a good first shot at some difficult and controversial issues.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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