Complying with the Digital Millennium Copyright Act
To view the actual text of the digital millennium law see: http://www.educause.edu/issues/dmca.html
Summary
The practical implications of the Digital Millennium Copyright Act will take some time to interpret. Of greatest immediate import for universities are provisions that (1) establish a new set of prohibited acts with limited exemptions, (2) create a framework limiting the liability of institutions for the acts of users of their networks and systems, and (3) require a study of appropriate exemptions for distance learnng. This memo is an initial assessment of the areas in which the universities will need to develop compliance mechanisms.
The new prohibitions and exemptions apply to technologies and businesspractices that are not yet common and will require attention to technical and legal details. They do not become effective for two years, which allows time to explore their implications. This period is also allocated for public input into a formal rulemaking process that will influence their implementation and will be repeated at three-year intervals. The limitation on liability is a shelter provided to online service providers in general, with additional exemptions for non-profit institutions of higher education, and is available only to entities that meet specified obligations. To meet the eligibility requirements, universities will need to allocate resources and develop due-process procedures that can be implemented rapidly. These provisions became effective when the bill was signed. The bill's provision for studies and periodic rulemaking provide an opportunity for universities to formulate and advocate for their interests.
Highlight
To receive the benefits of liability limitation for online service providers, universities required to designate an individual to receive allegations of infringement and to remove or block access to allegedly infringing material on their systems and networks on receipt of formal notice. Universities may determine that the alleged infringement is fair use and accept the liability by defending the use in any ensuing litigation. Procedures will be essential for making rapid decisions about how to respond to formal notice alleging infringement.
Limitations on liability
The Act grantslimited shelter to online service providers from liability for acts of infringement that take place on their networks and systems, so long as the providers do not know about it. In exchange, providers are required to act "expeditiously" to remove or block access to copyrighted material once infringement is alleged.
Universities are online service providers to their faculty, students, and staff. The liability exemption prevents them from being sued as "deep pockets" for infringement committed by individuals using their systems and networks.
The general limitation of liability for online service providers is premised on the idea that users' of online services are not otherwise related to the provider. Thus, for example, AOL subscribers are not employees of or stockholders in AOL. As employees of their universities, faculty and staff are generally treated as agents of their institutions rather than as subscribers. However, there is a special exemption for higher education that allows faculty and graduate student employees engaged in teaching and research activities to be treated as subscribers rather than employees. This exemption does not apply when
- the material they make available is "required or recommended" for a class; or
- the individual faculty member or graduate student has been the subject of two allegations of
- infringement within the previous three years.
Undergraduate students assisting faculty in teaching and research activities will not be eligible for this exemption but will be treated as university employees. Students who are not acting as employees will be treated as subscribers to university Internet services.
In order to receive the educational exemption,universities are required to provide information on the requirements of copyright law to all users of their systems and networks.
For any online service provider, including a university, to limit its liability, it must:
- designate and register with the Copyright Office the name and contact address of an individual to receive complaints that infringing material is available on their systems and networks;
- expeditiously' remove or block access to the allegedly infringing material;
- assist owners of copyrighted material who allege infringement to identify the individuals who have committed the infringing act if necessary.
The Copyright Office has issued interim regulations for registering the designated recipient of complaints. These became effective on November 3, 1998. The Act specifies information that must be contained in notice of alleged infringement and penalizes fraudulent notices.
Complying with these requirements will involve complex administrative procedures and policy decisions. When notice of alleged infringement is received, a university must decide whether to avoid liability by removing or blocking access to the specified material or to risk court action by allowing the material to remain accessible. No provision is made for due process before removal. However, after material has been removed, the subscriber may formally respond by notifying the service provider's designated agent that the material is not infringing. The service provider is then required to replace the removed material unless it receives notice that the complaining party is beginning legal action.
The service provider's designated agent thus becomes the broker for all communication between the complaining copyright owner and the allegedly infringing subscriber.
When notice of alleged infringement involves material made available by members of the faculty, the process for making take-down decisions will have to be transparent and legitimate enough to withstand controversy. Even a temporary take-down may cause serious disruption to teaching or research, or it may be seen as threatening the principles of academic freedom. Universities will require competent staff and legal resources to help faculty, students, and staff understand what copyright law allows and to help administrators make appropriate choices when infringement is alleged. The same issues will apply in lesser degree to material made available by students, particularly if it is related to research.
Resources will also be required to prepare or select informational materials on the requirements of copyright law for distribution to all users of University systems and networks.
New prohibitions
The Digital Millennium Copyright Act prohibits disabling technological protections, such as encryption, that:
- control access to a copyrighted work,
- control the distribution, reproduction, public performance, or public display of a copyrighted work; or
- control the creation of derivative works from a copyrighted work.
It also prohibits the manufacture, import, or distribution of technologies designed for the primary purpose of disabling technological protections of copyrighted works. These prohibitions take effect in two years.
In addition, the Act prohibits provision or distribution of falsecopyright management information and removal or alteration of copyright management information attached to a copyrighted work. This is effective immediately.
These prohibitions are qualified by various exemptions for such purposes as encryption research, reverse engineering, security testing, computer repair, protection of privacy and broadcast transmission.
Universities will need to:
- understand and interpret what is prohibited and what is permitted;
- provide appropriate information to campuses; and
- develop methodologies for tracking the impact of the prohibitions in order to substantiate any input we may wish to have to future rulemaking for implementation of the Act.
Distance learning
The Act requires the Copyright Office to prepare a study on the exemptions required for distance learning within six months. Opportunities may be provided for input into this study, as was the case for a similar study on database protection prepared last year. Universities should be prepared to advocate for exemptions that will make distance learning feasible.
Miscellaneous
Other parts of the Act also affect digital broadcasting, video recorders, and original designs and will affect some university-based activities. These also require analysis and interpretation but are less universal in their affect than the provisions described above.
Martha Winnacker
Executive Assistant for planning and policy for Information Resources and Communications, UC.
November 12, 1998
The information above is reprinted with permission from Martha Winnacker.
