Handbook of Information Security: Information Warfare, Social, Legal, and International Issues and Security Foundations, Volume 2

The Digital Millennium Copyright Act

Seth Finkelstein, SethF.com

Introduction

Basics and Critical Provisions

Circumvention

Technological Measure and “Effectively Controls Access”

Trafficking

Fair Use Implications

Major Exemptions

Reverse Engineering

Encryption Research

Criminal Provisions

Exemption Process—Anticircumvention Rulemaking

Classes of Works Exempted (2003)

Major Cases

Example Controversy—MediaMax CD3

Code as Speech

How Not To Get Sued Under The DMCA

Conclusion

Glossary

Cross References

References

INTRODUCTION

In 1998, citing the United States' obligations underWorld Intellectual Property Organization (WIPO) copyright treaties, Congress passed the Digital Millennium Copyright Act (DMCA). The DMCA is a wide-ranging addition to copyright-related law, encompassing such topics as take-down procedures in copyright infringement disputes and safe-harbor defenses for Internet service providers (ISPs). This chapter focuses on the aspects of the DMCA that have particular relevance to research by academics and professionals: the portions that define offenses such as “circumvention” or “trafficking.”

BASICS AND CRITICAL PROVISIONS

The DMCA is structured as a set of prohibitions, followed by various qualifications and exemptions to those prohibitions. The initial provisions are very broad and far reaching. It is a matter of much controversy whether subsequent interpretations and legal holdings will sufficiently constrain the scope of what constitutes a violation. The law in this area ...