Principal Attorney
Passed over two decades ago, the Digital Millennium Copyright Act represented the government’s first significant effort to bring copyright law into the Internet age. But how does the DMCA relate to copyright law and current infringement activities in today’s world?
What Is the Digital Millennium Copyright Act?
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) to amend U.S. copyright law in response to the growth of the internet in commerce and daily life. It amended copyright law in three primary ways.
First, the law established legal protections for online service providers from copyright infringement liability when providers’ users engaged in infringement. Providers could obtain immunity from infringement liability by implementing notice-and-takedown systems, which allowed copyright holders to notify online service and platform providers whenever users unlawfully posted the holder’s copyrighted materials online.
Second, the DMCA encouraged copyright holders to provide access to their works in digital format by creating specific legal prohibitions against unauthorized access to copyrighted works online, such as by circumventing encryption or hacking passwords.
Third, the law prohibited parties from providing false copyright management information or removing or altering such information on works online.
Copyright Infringement in the Digital Age
Although the DMCA has remained in effect for over 25 years, during which time much has changed, the law still serves as an essential part of copyright law in our highly advanced digital age. The DMCA remains relevant today due to recent trends online that involve potential copyright infringement, such as:
- File Sharing – Although commonly associated with peer-to-peer and torrent services from the early 2000s, like Napster, file-sharing remains prevalent online in the 2020s.
- Unauthorized Streaming Platforms – With many sporting events becoming widely available online through streaming services operated by traditional television channels or directly by sports leagues or sporting event promoters, some people refuse to pay the subscription fees for such streaming services and instead turn to illegal online sports broadcasts to watch events.
- User-Generated Content – Platforms like YouTube, TikTok, Twitch, and Instagram allow individuals to create and post original content. However, such content may contain copyrighted material without the copyright holder’s permission or a license.
- Ai-Generated Content – Some copyright holders have complained about using artificial intelligence to generate new content when the developers of those AIs built the models using copyrighted material without licenses.
How the DMCA Addresses Copyright Infringement in the Digital World
In today’s digital world, the DMCA addresses current copyright infringement issues in several ways, including:
- Expanded Safe-Harbor Provisions – Courts have extended the law’s safe-harbor provisions beyond internet service providers to online platform operators like Google, Amazon, and Facebook, allowing those platforms to avoid copyright infringement liability by implementing notice-and-takedown procedures.
- Takedown Processes – Online platforms have simplified the process of purported copyright holders submitting infringement notices. Today, these notices frequently result in the automatic takedown of suspected infringing content, with AI programs managing much of the notice-and-takedown process.
- Counter Notification Processes – In response to criticisms that notice-and-takedown procedures unfairly target content that does not contain copyrighted material or uses such material lawfully, online platform operators have also created counter notification procedures to allow users to challenge takedown notices.
Challenges of the DMCA
Some of the most common challenges and criticisms of the DMCA in today’s digital age include:
- Fair Use – Content creators have complained that copyright holders abuse the DMCA’s notice-and-takedown scheme to unfairly eliminate content that uses copyrighted material lawfully, such as in a fair-use commentary or parody.
- Bad Actors – Parties may willfully abuse the takedown system by filing claims on content when they do not own any material used to create the content.
- Potential Need for Modernization – The DMCA may require updating to address new technologies in the past two decades, such as AI and non-fungible tokens (NFTs).
Contact an Intellectual Property Attorney Today
If you have questions about the Digital Millennium Copyright Act and how it applies in today’s hyper-connected world, an experienced Texas intellectual property lawyer from Sul Lee Law Firm PLLC can provide the answers and guidance you need. Contact us today for an initial consultation to learn more about your rights and options under the DMCA.