Summary of Digital Millennium Copyright Act - as of 3 April 1998

Committee on the Judiciary

Orrin G. Hatch,




The "Digital Millennium Copyright Act of 1998" is designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age. Title I will implement the new World Intellectual Property Organization (WIPO) treaties, thereby bringing U.S. copyright law squarely into the digital age and setting a marker for other nations who must also implement these treaties. Title II will provide certainty for copyright owners and Internet service providers with respect to copyright infringement liability online. Title III will provide a clarifying exemption to allow a computer owner to authorize a service technician to make a copy of a computer program in RAM by turning on the computer to maintain or repair the machine.

TITLE I--WIPO TREATIES IMPLEMENTATION. TITLE I EMBODIES THE TEXT OF S. 1121, INTRODUCED ON BEHALF OF THE ADMINISTRATION TO IMPLEMENT THE WIPO COPYRIGHT TREATY AND THE WIPO PERFORMANCES AND PHONOGRAMS TREATY. BECAUSE THESE TREATIES LARGELY REQUIRE FOREIGN countries to raise their level of protection to that currently enjoyed in the United States, only a minimal number of changes are required to U.S. law. Many of these changes are merely technical. Two proposed changes are significant. First, this title provides protection against the circumvention of technological measures employed by copyright owners to control access to their works. It also provides parallel protection against circumvention of technological measures employed to prevent unauthorized reproduction, adaptation, distribution, performance, or display of their works. Second, this title provides protection for the integrity of copyright management information (CMI)--information conveyed in connection with a copyrighted work to identify the work, its author and/or the copyright owner, and the terms and conditions for use. These protections are enforced by civil and criminal remedies, with certain limitations and exemptions for innocent violations and for libraries, archives, and educational institutions. Reflecting amendments adopted by the House Judiciary Committee, libraries, archives, and educational institutions are also permitted to circumvent technical measures to gain access to a work for the limited purpose of determining whether to acquire such work, subject to specific conditions. Other House amendments adopted to clarify the scope of the definition of CMI appear to be noncontroversial but were not received in time to incorporate them in the current draft.

TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY. THIS TITLE REFLECTS AN AGREEMENT REACHED BY COPYRIGHT OWNERS AND INTERNET SERVICE PROVIDERS WITH RESPECT TO THE PROPER SCOPE OF LIABILITY FOR ONLINE INFRINGEMENTS OF COPYRIGHT. IT IS BASED UPON A PROPOsal circulated by Sen. Hatch and reflects many hours of tedious negotiations over the course of several months. In general it provides heightened certainty for copyright owners and service providers by clearly defining the conditions under which a service provider's liability for infringements that occur on their systems or networks will be limited. A service provider that falls within the safe harbors created by this title will be exempt from monetary damages and will be subject only to carefully prescribed injunctive remedies in limited circumstances.

The safe harbors may be described as follows. First, a service provider's liability is limited where it acts as a "mere conduit" for an infringing transmission. Second, a service provider's liability is limited for "system caching," where such caching meets certain conditions designed to protect the copyright owner's rights in the material cached. Third, a service provider's liability is limited for storage of infringing material on its system or network where it lacks knowledge of the infringing activity, does not receive a financial benefit directly attributable to the infringing activity and has the right and ability to control such activity, and, if properly notified of the infringing activity, responds expeditiously to remove or disable access to the infringing material. Fourth, and finally, a service provider's liability is limited for using information location tools to refer or link users to a site containing infringing material, provided again that the service provider lacks knowledge of the infringing activity, does not receive a financial benefit directly attributable to the infringing activity and has the right and ability to control such activity, and, if properly notified of the infringing activity, responds expeditiously to remove or disable the reference or link to the infringing material.

Eligibility for the protections of the safe harbors is conditioned upon the service provider's adopting a policy of terminating subscribers who are repeat infringers and on the service provider's accommodating standard technical measures to identify or protect copyrighted works. Failure of the service provider to fit into one of these safe harbors will not affect the service provider's claim that its conduct is nonetheless noninfringing, or any other defense. Where the service provider does remove or disable access to allegedly or apparently infringing material in good faith, it will not be liable to any person based on such actions. Where a person knowingly misrepresents to the service provider that material or activity is infringing, that person is liable for any damages caused by such misrepresentation to the copyright owner, his licensee, or the service provider. This title also provides for the court-ordered disclosure by a service provider to a copyright owner of the identity of a direct infringer. Finally, this title makes clear that its provisions in no way require a service provider to monitor its system for infringements or to access, remove, or disable access to material where to do so is prohibited by law.

TITLE III--COMPUTER MAINTENANCE OR REPAIR. THIS TITLE REFLECTS AN AMENDMENT ADOPTED BY THE HOUSE JUDICIARY COMMITTEE TO PROVIDE A MINOR, YET IMPORTANT, CLARIFICATION IN THE COPYRIGHT ACT TO ENSURE THAT THE LAWFUL OWNER OR LESSEE OF A COMPUTER MAY AUTHORIZe someone to turn on their computer for the purposes of maintenance or repair. This clarification is necessary in light of judicial decisions holding that copying parts of a computer program to RAM in the course of turning on and running the machine constitutes a "reproduction" under §106 of the Copyright Act. Thus, a service technician who is not the owner or licensee of the system software is not authorized even to boot up the machine. This title will clarify that it is not an infringement of copyright for an owner or lessee of a machine to make or authorize the making of a copy of a computer program, where such a copy is made simply by turning on the machine for purposes of maintenance or repair, provided the program on the machine is authorized and the copy is not used for any purpose other than maintenance or repair and is destroyed immediately after the maintenance or repair is completed.