Tom explains the DMCA and how it affects what content you may or may not see…and why it seems an insurmountable obstacle to some creators.
Featuring Tom Merritt.
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Episode Script
I just want to comment on a trailer but now I got a DMCA notice? What the hecks a DMCA?
I just want to laugh at a trailer and now I’m threatened with perjury?
Apparently its a Digital Millennium Copyright Act and I could be breaking the law for doing a screen capture?
Are you confused?
Don’t be.
Let’s help you Know a Little more about the DMCA.
Since the Internet became more than just something university IT experts used, worries about copyright violations on the internet have existed.
Digital content is infinitely copyable and the internet makes it infinitely transferable. That’s a nightmare for businesses built on physical limitations to copying, like music, movies and others.
To extend these older business models onto the internet, companies use digital rights management or DRM. This is a name for varying ways of trying to lock up content so that only a user who is authorized to view it can. It’s an attempt to make it not be infinitely copyable. DRM is tricky though because you have to balance access for the person who does have the right– like a paying customer– with denying access to anyone who doesn’t. Those are cross-purposes. If you leave a door open for authorized viewers, eventually unauthorized viewers will figure a way into it.
So the industry quickly turned to the law, and we get the Digital Millennium Copyright Act. Or DMCA. While this is only a law in the US, it affects anyone who publishes content in the US, such as on YouTube and has provided a model for laws like it around the world.
The problem it solves is that no matter what digital locks you put on a file, someone can figure out a way to break them. So the law fixes this by making it illegal to break them.
That’s one of the main misunderstandings about the DMCA. It doesn’t just make unauthorized access illegal. That was already illegal under copyright law. It makes circumventing access protections illegal, punishable by fines and imprisonment.
Copyright holders can seek up to $2,500 per violation, or statutory damages up to $25,000. Repeat offenders can face more. If you are accused of willfully violating the DMCA for personal or commercial financial gain, you can be tried as a criminal offender. A first-time criminal DMCA violator can face a fine of up to $500,000, up to five years in jail, or both. Repeat offenders can be fined up to a million dollars and up to ten years in prison.
Screen capturing is a circumvention of the DMCA in some cases. Keep that in mind.
The DMCA was passed as an amendment to the US Copyright Act in 1998. It implemented two 1996 treaties of the World Intellectual Property Organization.
It makes it illegal to produce or disseminate (even if you give them away free) any device or service INTENDED to circumvent measures that control access to copyrighted works. Courts decide whether a device or service is intended to do this. Because you know, computers can do this, but it’s not their sole intention. And that’s why screen-capturing software is not just illegal.
The other aspect of the DMCA is it makes it illegal to circumvent access control EVEN IF copyright is not infringed. Yep. If you have a fair use for something, like making a backup of a DVD, it is illegal under the DMCA to circumvent copyright protection in order to make fair use of that backup. The DMCA includes some limited exemptions such as for security research and government research but they are few.
Now if you’re saying hold on I thought they changed that and made DVD copying legal. We’ll get to that later but yes and no.
There are a couple more aspects of this to keep in mind. One, is that the United States Copyright Office ( part of the Library of Congress) was given the power to create (and get rid of) further exemptions to the DMCA. So it can restore fair uses on a case by case basis. More on that later.
And then there’s a safe harbor for platforms. Online Service Providers, which includes platforms like YouTube and Facebook– are exempt from liability for their users copyright infringement as long as they follow certain procedures. Platforms keep their safe harbor by promptly blocking access to infringing material once they are notified of an infringement claim. This called the “notice and takedown” process. It also provides for a counter notification from a user who claims the material is not infringing.
There’s also an exemption for a repair person who makes limited copies solely for the purpose of repairing a machine. In other words, imaging a drive to restore it on a replacement drive doesn’t violate the DMCA. There are also some provisions for distance education, ephemeral copies made in the process of broadcasting and more.
DMCA’s Title V is my favorite. Title V provides protection for Boat Hull designs because Boat Hull designs are not covered by copyright as they cannot be separated from their useful function and therefore are better protected by patents than copyright. This section of the DMCA was added in 1998 after the Supreme Court ruled — in Bonito Boats, Inc. v. Thunder Craft Boats, Inc. –that Boat Hulls did not have copyright protection. So, immediately boat manufacturers lobbied congress to add the exemption to the DMCA. As of 2019 there have been 538 applications for registrations for Boat Hull designs under the DMCA, compared to more than 70,000 patents granted.
OK back to the notice and takedown system.
The notice and takedown system is governed by Section 512 of the DMCA.
In order to get the safe harbor protection, a service provider has to have an agent on file who takes notifications. The provider can’t have reasonably known about the infringing activity or directly benefit financially from infringing activity. In other words your main business can’t be infringement.
Ok. Now you’re a safe harbor protected platform. How does it work if somebody thinks their copyright has been infringed on your platform?
Well it works differently for every system but here are the parts required by Section 512.
The notifier must send a formal takedown request notification under penalty of perjury. They can’t knowingly lie about it.
Once a notice is received, the provider must “expeditiously take down or block access to the material.” right away. No grace period. It must also promptly notify the user that the content has been removed or disabled.
The user can then file a counter-notification, also under penalty of perjury, that its content was identified as infringing through a mistake or misidentification.
That sends it back to the notifier. If they do not file a court order against the user, the provider must restore the content within 10-14 days.
So yes. Send a takedown notice the content goes down immediately. Send a counter notice it takes 10-14 days to get it back up.
So you could abuse the system by just sending notices for anything you wanted to disappear from the internet for a couple of weeks right?
Well, those perjury conditions are meant to keep the system from being abused but in practice they’re hard to prove. Just being mistaken is not the same as perjury so you have to prove that a company KNEW the content was not infringing when it sent the notice, not just that it was mistaken. And end users are much more likely not to want to risk a perjury lawsuit than the large companies who send bulk notices, so most takedown notices are successful. But willful and malicious abuses are rare. Mistakes however, are rampant. Lots of companies have been accused of sending inaccurate bulk takedown notices, sometimes ending up affecting their own employees. But that’s not the same as perjury.
Also there is a chilling effect of the DMCA. A content-hosting platform can avoid falling afoul of the DMCA by just not hosting some material altogether. It’s not required to host it. So some companies, like YouTube have employed “informal” takedown notices that are not meant to be the legally required notices. These are usually constructed as terms of service violations. This lets them take down content without risking the perjury charge. Companies have the right to operate outside the DMCA in this way because the law can’t force them to host content they don’t want to. A copyright holder is only subject to perjury restrictions if they are following a “formal” takedown procedure. YouTube does have a method of proceeding from informal takedowns to formal ones.
For years YouTube used a bot system called ContentID to look for possibly infringing content. If the bot thought it saw a match to a database of content provided by big copyright holders, it would pull the content off the site and notify the user it had been pulled. This was not part of the DMCA.
If the user disputed the Content ID claim, YouTube would then contact the alleged rights holder. The rightsholder could release the claim and the content would go back up or could uphold the claim and the user would be notified that the rights holder still claimed the content was infringing and it would stay down. This was partly DMCA as this could also serve as the rightsholder’s formal Takedown notice. But since the bot had identified the content as infringing the risk of perjury for the rights holder was almost nothing.
If the user did not have an account in good standing or had already appealed three other claims that was it. The DMCA never entered into it for the user. YouTube just declined to host the content because they didn’t want to.
However if the user was in good standing and had not reached the appeal limit a DMCA counterclaim would then be issued to the rightsholder — with the risk of perjury for the user still there– and the normal DMCA takedown procedure would take place. The rightsholder would then have to decide whether to pursue it in court or not.
As I mentioned earlier the US Copyright Office can make exemptions to the DMCA. It regularly reviews exemptions and can add, extend or remove them.
The Copyright Office has issued 32 exemptions to the DMCA over the years. Here’s a look at a few of them.
The first two in 2000 were for website filtering — you know like safe sites for kids kind of stuff– and preservation of damaged or obsolete software and databases.
In 2003 an exemption was given to screen readers for e-books and one for video games distributed in obsolete formats.
A brief exemption was given in 2006 for sound recordings protected by software with security flaws, specifically the Sony Rootkit. And one for unlocking wireless phones.
In 2010 an exemption for breaking DVD’s Content Scrambling System was issued for educational, documentary, noncommercial or preservation uses. Security testing of video games.
In 2012 an exemption for excerpting short portions of movies for criticism or comment was given.
In 2018 one for 3D printers if the sole purpose is to use alternate feedstock. As well as ones to expand exemptions for preservation and security research.
So that is the Digital Millennium Copyright Act, aka the DMCA.
It makes it illegal to circumvent copyright protection unless there is an exemption written in the act itself, or added by the US Copyright Office.
It also provides a way to try to get infringing material removed and a way for a user to combat having that material removed.
I hope this helps you understand why some content is allowed up and some is not and why you don’t see some content at all.
In other words, I hope you know a little more about the DMCA
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