DMCA. Four letters. Ten years. Countless frustrated consumers. Passed ten years ago today, the Digital Millennium Copyright Act has been arguably, for better or worse, one of the most influential pieces of U.S. legislation in recent years.
While the DMCA has been the legal muscle behind shutdowns of P2P services like the original Napster and Kazaa and helped usher in the era of DRM, it also allowed digital media to flourish in certain legal forms, including, amongst many others, the iPod and iTunes. So, whether you love it or hate it, the DMCA has become eternally tied to the spread of digital and online media.
Let’s take a trip down memory lane to see just how this whole thing got started.
1996 was an important year for technology: Windows 95, a revolutionary operating system, had lowered the bar for the average PC user; Web browser use was on the rise; at that year’s CES, the DVD was introduced. With all of this happening, digital media was also becoming increasingly popular. And, with the rise of digital media use came the rise of the digital media lawsuit.
To help settle many of the issues that accompanied the increased popularity of the Internet and the CD-ripping computer, the World Intellectual Property Organization (WIPO), a United Nations agency that deals with intellectual property, passed two treaties, the WIPO Performances and Phonograms Treaty (WPPT) and the WIPO Copyright Treaty (WCT). These two treaties solidified the rules on two very prominent forms of digital media—music and computer software and databases.
The WPPT involved the production and distribution rights of performers and the makers of audio-only devices, while the WCT dealt with the production and distribution rights of computer programs and databases, a relatively new issue. By the time 1997 rolled around, all of the WIPO member states, which included the U.S., had agreed to adopt the WPPT and WTC. So, it was now up to Congress to take these two treaties and turn them into federal legislation.
An early draft of the DMCA was introduced to the House of Representatives on July 29, 1997 by a Republican congressman from North Carolina, Howard Coble. After being considered by the House Judiciary Committee (Subcommittee on Courts and Intellectual Property) and House Commerce Committee (Subcommittee on Telecommunications, Trade, and Consumer Protection), the bill passed the House on August 4, 1998. A month later, on September 17, it passed the Senate with a unanimous vote, was reported on by a joint conference committee a month later, and was finally signed into law by President Bill Clinton on October 28, 1998, ten years ago today.
While the initial purpose of the DMCA was to change existing U.S. copyright law to include the provisions of the WPPT and WTC, additional material was added to the act. Two of the main additions were the second portion of DMCA Title I, which involved rules about installing and circumventing copy prevention systems (such as DRM), and Title II, which allowed online service providers (OSPs), including ISPs, to be immune for copyright infringement liability if they followed certain”safe harbor” guidelines (this title is a key factor of why ISPs are usually not involved in P2P file sharing cases).
With the DMCA in place, it was only a matter of time until the lawsuits citing the act started coming in. While the number lawsuits involving the DMCA is seemingly endless, there are some important ones that continue even now.
One of the most high-profile of these is Viacom Inc. vs. YouTube, Google Inc., in which Viacom is suing YouTube and its corporate parent, Google, for $1 billion in damages over clips posted on the site from some of the media conglomerate’s shows and networks (such as Comedy Central). Google’s primary defense is based on section 512 of the DMCA, in which providers of illegal content online are legally safe as long as they remove it once alerted. But this case also represents one of the major problems facing the DMCA today: it’s out of date.
While the DMCA may have been revolutionary at its time, ten years is forever in terms of technological advances. When the DMCA was first passed, Napster was pushing the envelope of audio on the Internet. Now, not only do we have a plethora of online music stores, but an increasing number of video sites, such as YouTube. These present new issues not addressed in the DMCA, such as rapid uploading and homemade content.
One company caught between the old DMCA and the need for an updated one is Apple. iTunes, the iTunes Music Store, and the iPod were all made possible by the DMCA, as it provided the RIAA and music studios in general with the legal security to allow their music to be distributed online and on portable music players. On the other hand, Apple has begun to feel the burden of DRM, the major condition that music studios insisted upon when they first brought their music online. With the development of the DRM-free Amazon MP3 music store and Apple’s iTunes Plus, a new or modified DMCA could provide statutes that would either make DRM less imprisoning or dismiss the need for it all together.
So, while the DMCA may not seem like the best piece of legislation to celebrate, it’s good to remember both sides of the issue. This ten-year-old act may have been behind the disappearance of the original Napster and Kazaa, but it’s also made sure that iTunes, iPods, and iPhones have been able to provide music and video easily and legally. Here’s to hoping the next ten years see changes that make it even more enjoyable to get movies, music, and TV shows online.
Shouldn't it say July 29, 1997?