THE DIGITAL MILLENNIUM COPYRIGHT ACT

Jonathan Band
Morrision & Foerster LLP
Washington, D.C.
jband@mofo.com

On October 12, 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a complex piece of legislation which makes major changes in U.S. copyright law to address the digitally networked environment. The President is expected to sign the DMCA shortly. This memorandum discusses the law's five titles which: (1) implement the WIPO Internet Treaties; (2) establish safe harbors for online service providers; (3) permit temporary copies of programs during the performance of computer maintenance; (4) make miscellaneous amendments to the Copyright Act, including amendments which facilitate Internet broadcasting; and (5) create sui generis protection for boat hull designs. A controversial title establishing database protection was omitted by the House-Senate Conference, as was a provision which would have reversed the Supreme Court's decision in Quality King v. L'anza, 118 S. Ct. 1125 (1998), which concerned parallel imports.

TITLE I: WIPO TREATIES IMPLEMENTATION

Circumvention of Copyright Protection Systems - New Section 1201

• Reverse Engineering Exception
• Exception for Law Enforcement and Intelligence Activities
• Encryption Research Exception
• Security Testing Exception
• Exception Regarding Minors
• Protection of Personally Identifying Information
• Exemption for Nonprofit Libraries, Archives, and Educational Institutions
• Certain Analog Devices and Certain Technological Measures

Copyright Management Information - New Section 1202

• Limitations on Liability
• Civil Remedies and Criminal Penalties
• Technical Amendments

TITLE II: ONLINE SERVICE PROVIDER LIABILITY

General Conditions for Eligibility

• Termination Policy
• Accommodation of Technical Measures
• No Need to Monitor or Access

Safe Harbors for System Storage and Information Locating Tools

Safe Harbors for System Caching

Safe Harbors for Transmission and Routing

Extent of Exemptions from Liability

• Monetary Relief
• Injunctions

Notice and Take-Down Provisions

• Designated Agent of OSP
• Form and Content of Notice
• Misrepresentations
• Subpoenas

"Take Down" Procedures

• Exemption from Liability
• Notice and Putback

TITLE III: COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

TITLE IV: MISCELLANEOUS PROVISIONS

• Provisions Relating to the Register of Copyrights
• Ephemeral Recordings
• Distance Education Study
• Exemption for Libraries and Archives
• Scope of Exclusive Rights in Sound Recordings; Ephemeral Recordings

TITLE V: PROTECTION OF CERTAIN ORIGINAL DESIGNS

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