The Digital Millennium Copyright Act

Invitation

The Digital Millennium Copyright Act
By Jeanine L. Gibbs Esq.

Protecting your Intellectual Property Rights in Cyberspace

How do you protect information that you post on the Internet? How do you ensure that a competing business does not take your work from the Internet and misuse it for its own commercial gain? If you are concerned about the answers to such questions, this article is a must read for you.

In 1998, the United States Congress passed the Digital Millenium Copyright Act ("DMCA" or the "Act"). Pub.L.No. 105-304, 112 Stat. 2860 (October 28, 1998). That Act deals with a variety of issues. This article focuses on frequently asked questions concerning the sections of the DMCA which were enacted to protect information posted on the Internet.

Q: What types of works are protected by the Digital Millenium Copyright Act?

A: The definition of the works that are entitled to copyright protection is found in the Copyright Act of 1976. Act of Oct. 19, 1976, Pub. L. 94-553, 90 Stat. 2541; 17 U.S.C. § 101 et seq. Pursuant to that act, copyright protection extends to original works of authorship fixed in any tangible medium of expression. What does that mean? It means you have to be an author of an original literary, artistic, musical, dramatic, pictorial or other type of original work which is fixed and is able to be communicated. 17 U.S.C. § 101 et seq. For example, the article that you are currently reading is a work that is protected by the Copyright Act of 1976 -- this article is an original work (I wrote the article), it is fixed (by written words), and it is able to be communicated (you are reading the article). In general, it is relatively easy to satisfy the definition of a copyrighted work.

If a work is protected by the Copyright Act of 1976, it may be subject to the further protections under the Digital Millenium Copyright Act, 17 U.S.C. §§ 1201-1204. Essentially, the Digital Millenium Copyright Act adds a new chapter to the Copyright Act of 1976. Thus, the definition of a protected work found in the Copyright Act of 1976 (17 U.S.C. §101) also applies to the Digital Millenium Copyright Act.

Q: If I plan to post my work on my Internet site, what can the Digital Millennium Copyright Act do for me (to protect that work)?

A: Once you have determined that your work is entitled to copyright protection, certain provisions of the DMCA may provide new protections for that work on the Internet.

First, 17 U.S.C. § 1201 encourages copyright owners to use technology to protect copyrighted works on their Internet site (the Act refers to this technology as "technological measures"). "Technological measures" fall into two categories -- measures which (1) prevent access to your work or (2) prevent copying of your work. The following example illustrates how to use this portion of the DMCA to prevent a competitor from misusing your work:

You decide to post a new short story that you wrote on your Internet site. An individual visits your Internet site and sees the title, "Amazing Short Story." That person wants to read the story so he or she clicks on the title to view the full text of the story. Prior to accessing the full text of the story, the individual is presented with a clickwrap contract and has to obtain a password to view the story. The individual decides not to agree to the clickwrap contract and instead uses a device that bypasses your password system. Once the individual reads the story, he or she decides to copy it and sell it for a profit. The individual does all of the above without your permission.

The individual referenced above has just improperly circumvented a "technological measure" (your password system) to gain access to your short story which is an original work (a copyrighted work), and that individual has, therefore, violated Section 1201 of the DMCA. Thus, you would have a basis for suing that individual or at a minimum, for sending a demand letter requiring the individual to stop using (reselling) your short story. This is one example of how to use Section 1201 of the DMCA to protect your work on the Internet.

Second, 17 U.S.C. § 1202 is another provision of the DMCA; this provision protects the integrity of copyright management information (CMI). The technical definition of CMI is found in 17 U.S.C. § 1202(c). Simply put, CMI is the line on a copyrighted work indicating who owns that work. You can see an example of CMI by looking at the bottom of this article where it states, "Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C." That notation is the CMI for this article. Based on the CMI, Section 1202 provides two new ways to prevent a competitor from taking a protected work from your Internet site; the following example illustrates one way to use this provision of the DMCA:

You go onto the Internet and are reading my article on the Ubiquity site. After you read it, you copy my article verbatim and decide to resell it to make money. Before you sell it, you remove the copyright notice at the bottom, "Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C." Once you remove this notice, you put on the article your own CMI as follows: "Copyright © 2000 by Internet Pirate, Inc." Finally, you post the article with your new Internet Bandit, Inc. CMI on your Internet site and make a profit by distributing the article in a variety of other ways. You do not ask my permission to do any of the above.

In this example, you would have just violated 17 U.S.C. § 1202 in two ways: (1) by removing my CMI from this article ("Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C.") and (2) by putting your own false CMI on the article ("Copyright © 2000 by Internet Bandit, Inc.") Thus, you would be subject to a lawsuit based on either of these violations. At a minimum, I could send a demand letter to you requiring you to stop using (reselling) my article. This is another example of one way to use Section 1202 of the DMCA to protect a work posted on the Internet.

Q: What if an individual violates 17 U.S.C. §§ 1201, 1202 of the DMCA? What are my remedies?

A: If an individual violates Sections 1201 or 1202 of the DMCA and you are injured by these violations, you may file a lawsuit based on these violations. The DMCA provides a wide range of civil penalties that you may request from the court in a lawsuit as follows:

temporary and permanent injunctions;
impounding of any device or product that was involved in a violation;
statutory or actual damages;
costs;
reasonable attorneys' fees if you prevail in the lawsuit; and
destruction of any device involved in the violation of the DMCA.
17 U.S.C. § 1203.

Additionally, if your competitor is violating the DMCA on a large scale and a government entity decides to pursue that violator, the Act provides for criminal penalties as well.

17 U.S.C. § 1204.

The government may request criminal penalties as follows:

(1) a fine of not more than $500,000 or imprisonment for not more than 5 years, or both, for the first offense; and
(2) a fine of not more than $1,000,000 or imprisonment for not more than 10 years, or both, for any subsequent offense.

In conclusion, by designing your Internet site to take full advantage of the protections of the Digital Millennium Copyright Act, you are more likely to be able to protect copyrighted works that you post on your Internet site. Such protections are vital to protect your intellectual property rights in cyberspace.

Copyright © 2000 by Jeanine L. Gibbs, Altman, Kritzer & Levick, P.C. Ms. Gibbs (jgibbs@akl.com) is an attorney in the technology practice group at Altman, Kritzer & Levick, P.C., an Atlanta, Georgia based law firm with a satellite office in Chicago, Illinois. She practices in the areas of technology litigation and general commercial litigation.

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