In February 1993, President Clinton formed the Information Infrastructure Task Force (hereinafter referred to as IITF) to articulate and implement the Administration’s vision for the National Information Infrastructure. The IITF, chaired by then Secretary of Commerce Ronald H. Brown, was made up of high level representatives of Federal agencies that are engaged in advancing the development of information technologies. The IITF organized itself into three committees: (1) the Telecommunications Policy Committee; (2) the Committee on Applications and Technology; and (3) the Information Policy Committee. The Information Policy Committee established a Working Group on Intellectual Property Rights, which was chaired by then Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman. The purpose for the existence of the Working Group on Intellectual Property Rights was to study, analyze and make recommendations on appropriate changes to United States intellectual property law and policy. Ultimately, the efforts of the Working Group on Intellectual Property lead to the adoption of the Digital Millennium Copyright Act. Since its enactment in 1998, the DMCA has been lauded by the Motion Picture Association of America, the Recording Industry Association of America and other industry groups. As one might expect, that which keeps the entertainment industry happy is fodder for criticism by academics and those who embrace fair use rights. Although it can hardly be argued that there needs to be some protection provided for copyright owners in this digital era, the DMCA has rather uniformly been criticized by industry outsiders as unwise, unconstitutional and an ill conceived regulatory scheme.

Brief History of the DMCA

In September of 1995, the Working Group on Intellectual Property Rights issued a White Paper entitled “Intellectual Property and the National Information Infrastructure.” This White Paper represented the Working Group’s examination and analysis of intellectual property law, focusing primarily on copyright law and the effectiveness of Title 17 of the United States Code in the context of the National Information Infrastructure. This White Paper was the first step forward in reviewing and rethinking the applicability of US intellectual property laws in the digital age.

The White Paper recognized the difficulty the law faces, even intellectual property law, in keeping pace with changes in technology. This is true even for copyright law, which had a major overhaul in 1976, less than twenty years prior to the formation of the Working Group. At the time of the Copyright Act of 1976, special care was taken when drafting the statute so that it would be flexible enough to be applied to future innovations, but technology has a way of out pacing even forward thinking, flexible statutes. By the mid 1990s the Copyright Act was in need of some significant assistance if it was going to maintain relevance in the digital age, and it was necessary for Congress to step in and fashion the rules necessary to cope with the changing technological landscape.

The Working Group on Intellectual Property predicted that the ease of infringement and the difficulty of detection and enforcement would cause copyright owners to look to technological solutions, in addition to legal solutions, in order to protect their copyrightable works. But for every technology that can be created to protect information, there is a technology waiting to be created, and which will be created, to counteract the protection provided. With this in mind, the Working Group suggested that Congress make rather significant changes to the Copyright Act, and provide legal protection for copyright owners wishing to employ technological measures to protect their works.

The suggestions of the Working Group took on new meaning when in December of 1996, a Diplomatic Conference was convened in Geneva, Switzerland under the auspices of the World Intellectual Property Organization (”WIPO”). This conference was called for the purpose of negotiating new multilateral treaties to protect copyrighted material in the digital environment and to provide stronger international protection to performers and producers of phonograms. The conference produced two treaties, the “WIPO Copyright Treaty” and the “WIPO Performances and Phonograms Treaty,” which were adopted by consensus by over 150 countries.

In July 1997, the Clinton Administration submitted the treaties to the Senate for ratification and submitted proposed implementing legislation to both the House and the Senate. As the treaty implementation bills worked their way through Congress, it became apparent that both bills faced significant opposition from many private and public sector interests, including libraries, institutions of higher learning, consumer electronics and computer product manufacturers, and others. The debate on the treaty implementation legislation highlighted the dual priorities of promoting the continued growth and development of electronic commerce, while at the same time protecting intellectual property rights. Both Congress and the Clinton Administration used these international treaties as an excuse for passing a broad, sweeping changes to U.S. copyright laws that were urged by the entertainment industry , despite the fact that such changes to U.S. copyright law were not required by the treaties themselves.

The United States Congress ultimately enacted The Digital Millennium Copyright Act, more commonly referred to as the DMCA, which was signed into law on October 28, 1998. The DMCA had as its primary purpose the goal of updating United States copyright laws with an eye toward making them more relevant and flexible given the ever changing digital information climate. The DMCA was divided into five sections, each having a different focus. Title I of the DMCA is the WIPO Copyright and Performance and Phonograms Treaties Implementation Act of 1998. Title II is the Online Copyright Infringement Liability Limitation Act, which creates limitations on the liability of online service providers for copyright infringement. Title III is the Computer Maintenance Competition Assurance Act, which creates an exception for making a copy of a computer program by activating a computer for purposes of maintenance or repair. Title IV contains miscellaneous provisions relating to distance education, the ability of libraries to make ephemeral recordings, webcasting of sound recordings, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures. Title V is the Vessel Hull Design Protection Act, which creates a new form of protection for the design of vessel hulls.

Additional Resources

DMCA Summary (prepared by the US Copyright Office)

The Digital Millennium Copyright Act (as enacted by Congress)

Overview of the DMCA (UCLA Online Institute for Cyberspace Law and Policy)

Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works (from the US Copyright Office)

Limitation of Liability for Online Service Providers (by Lutzker & Lutzker LLP)

DMCA Archive (Electronic Frontier Foundation)

Digital Millennium Copyright Act (Wikipedia)