The Digital Millennium Copyright Act, or DMCA, was signed into law in 1998. This controversial law should be understood by entities engaged in on-line activities for two reasons. First, proper compliance with section 512 is an effective tool for minimizing, and almost eliminating, your liability for your customer’s infringing acts. Second, certain provisions of the DMCA prohibit you from allowing your customers to distribute or sell items that defeat copyright protection measures.
Safe Harbor Provisions
Provided you properly implement the procedures set out in § 512 of the DMCA, and take actions based on those procedures, the DMCA provides a “safe harbor” from liability to copyright holders when your customers infringe their copyrights. This safe harbor is very important, considering that third parties who facilitate copyright infringement may be liable to the copyright holder for treble damages. Reviewing the DMCA with the following three steps in mind, may facilitate falling within the safe harbor.
The DMCA sets out detailed criteria for qualifying for safe harbor from third party liability. These criteria fall within the following three steps:
- Designate an agent with the Library of Congress.
- List that agent on your website, along with the process you follow to address allegations of third party copyright infringement.
- Design, implement and follow an internal compliance plan designed according to the requirements of the DMCA that you use to handle these types of allegations.
The resource materials on the right lead to materials that should help you take advantage of this important law.
The DMCA contains a strongly worded section that prohibits the “distribution” of devices that can be used to circumvent anti-piracy tools used by copyright owners. The term “distribution” and other terms used in this section are sufficiently vague so that they pose a considerable problem. At issue is whether you become a distributor of these devices when you receive an allegation that one of your customers is selling circumvention technology.
As can be seen from the “viewpoints” category on the right, this section of the DMCA has created a great deal of controversy. Entities who are engaged in on-line activities should develop a compliance strategy to address this issue. In formulating this strategy, you should take into account both the express terms of the DMCA, the various positions taken on both sides of the issue, and your tolerance for risk.