US Copyright Law and DMCA
Understanding United States Copyright Law and the DMCA
In our modern age of technology, few things are as frustrating as trying to make sense of copyright law. Given the rapidly growing status of the digital age, new precedents are being created every day. The few existing precedents we have to go by are often intangible and hard to apply directly to any given case. Because of this labyrinthian nature, those dealing with copyright law are generally advised to seek out the help of a professional copyright lawyer. Whether you are the legal owner of a copyrighted work that is being infringed, or someone who has unknowingly and innocently been accused of infringement themselves, seeking professional counsel from a copyright lawyer can make all the difference.
The DMCA (Digital Millennium Copyright Act)
The clearest precedent for copyright law when it comes to digital media is the DMCA or Digital Millennium Copyright Act. This act, passed into federal law by the Clinton administration in late 1998, sets the clearest guidelines we have for what is and is not a valid use of copyrighted digital media. As the preeminent clarification of copyright law pertaining to digital media, the DMCA is essentially the bible for those dealing with legal troubles regarding digital infringement. However, the DMCA is not perfect, and, given that it is over two decades old at this point, it can be somewhat tricky to figure out how and why the DMCA does or does not apply to many modern cases of digital copyright infringement.
The Ambiguous Protections Established by the DMCA
In the DMCA, there are many protections for both legal copyright holders of digital media, and for those who might not be copyright holders but are still within their legal limits of use for said digital media. In the original documents, these provisions were written as vaguely as possible so that they could be left up to further interpretation and fallibility as the digital age grew exponentially beyond any parameters lawmakers of the past could envision. Thusly, the ability to freely interpret and transpose the intricacies of the DMCA onto modern cases, some of which may have no existing precedent, is going to give you a very strong advantage when taking a digital copyright case to court.
Understanding DRM, or Digital Rights Management
There are five distinct sections of the DMCA, referred to as titles, and each one deals with a whole host of issues pertaining to copyright law. These five sections contain a slew of material detailing the specific responsibilities of agencies tasked with enforcing digital copyright, such as the Copyright Office. However, the most commonly referred to sections of the DMCA are those pertaining explicitly to DRM, or digital rights management, as well as liabilities pertaining to online copyright. These sections are commonly the ones pertaining most explicitly to modern cases of digital copyright. Therefore, these sections are often the most valuable in deciding how to go forward with a specific case.
What Function Does DRM Serve in Copyright Law?
DRM, or Digital Rights Management, refers to a set of procedures used by copyright holders to preemptively inhibit consumers from illegally misusing digital media. Because the internet is so vast and it is so difficult to police every single internet user, DRM functions as an intrinsic handicap written into the code of digital media preventing consumers from doing anything the copyright holder doesn’t want. This can be anything from a watermark included in an image or video or code in software that prevents that software from being used by more than one user.
Is It Ever Acceptable to Circumvent DRM?
Because DRM is generally just another part of the code, it can sometimes be hacked and then circumvented by knowledgeable consumers and users. The DMCA delegalizes the circumvention of DRM, but only for specific purposes. For instance, if a tech-savvy user wanted to circumvent DRM coding to make a copy of software they legitimately own simply for the purposes of having a back-up, that is protected under the DMCA. However, if DRM is circumvented in order to make copies of a program that the user then attempts to sell for profit, this is in clear violation of the DMCA.
Besides making a personal copy for back-up, there are a few other instances in which circumventing DRM is allowable under the DMCA. These include:
- Privacy Concerns – circumventing DRM to prevent software from obtaining and/or distributing personal information
- Reverse Engineering – circumventing DRM in order to understand how a program works so that it’s ideas can be replicated or incorporated, or for the purposes of better understanding and increasing general digital security
- Educational Purposes – educational institutions such as schools and libraries are allowed to circumvent DRM for a small range of purposes
How to Deal with a DMCA Takedown Notice
There are generally two parties involved in a DMCA takedown notice: the copyright holders and the supposed breaker of the copyright. This ordeal can be frightening and confusing regardless of where you find yourself. Once you are aware that legal action is taking place, you only have so much time to get yourself educated and prepared for the battle ahead.
Sending a DMCA Takedown Notice
You’ll send a DMCA takedown notice once you become aware that someone is digitally infringing on your copyrighted material, whether by posting it online or sharing it. DMCA takedown notices are usually sent to third-party hosting services, such as YouTube, as compared to the specific individual who is breaking the copyright. Although YouTube is not inherently liable for third-party uploads breaking copyright law, they are obligated to pass along the DMCA takedown notice and to take down the accused work immediately until the case is resolved. You will need to make sure that the DMCA takedown notice is as explicit as possible and sent to the proper agency. Agencies may include websites that are hosting the copyrighted material, whether third-party or not, and even search engines displaying the infringed material in their results.
If someone has highjacked your content, don’t hesitate to take action. The fastest and easiest way to do a DMCA Takedown without an attorney is to use a service such as “Takedown”. For details visit takedwn.com
Receiving a DMCA Takedown Notice
As we discussed, once a DMCA takedown notice is filed, the hosting party is obligated to take down the accused work whether the work is in violation of actual copyright law or not. Sadly, this means that, in the digital sphere, you are not “innocent until proven guilty”, but rather “guilty until proven innocent”. For many, especially those who make a living online, this can be a huge burden and something that you don’t want to take lying down. DMCA takedown notices are given all the time under false pretenses, and those who receive them don’t always have the knowledge or resources necessary to fight the claim. This is where a professional copyright lawyer can make all the difference.
Those who receive false claims can file a counter-claim. A counter-claim simply states that you do not believe your work to be infringing on any copyrighted materials. This counter notice will be given to the copyright holder, and they will be tasked with either giving up or persuing further legal action. If they give up, your work will be re-uploaded and allowed to stay on the hosting platform within two weeks. Otherwise, the filer of the original DMCA takedown notice will be tasked with taking the battle to court, something which is often undesirable.
When Should I Hire a Copyright Lawyer?
If there’s any doubt in your mind whether or not you should consult a copyright lawyer, the answer is usually “yes, you should”. In matters of digital copyright infringement, it is always best to err on the side of caution. Consulting a professional attorney versed in not only generally copyright law but also the specific ramifications of the DMCA can make all the difference, regardless of what side of the battle you find yourself on.
Copyright law is a field that is only getting more complicated as time goes on. Trying to make sense of it alone can oftentimes be overwhelming for small parties. Whether you are having your copyrighted work infringed and aren’t sure of what steps to take from here or are an innocent party whose personal work is being sabotaged by false claims, a copyright lawyer can show you the light at the end of this long and windy digital tunnel.