Protection of Personally Identifying Information. The DMCA addresses personal privacy concerns by permitting circumvention for the limited purpose of identifying and disabling as technological means such as a "cookie" which collects or disseminates personally identifying information reflecting the online activities of the user.16 This exception is only applicable if the user is not provided with adequate notice and the capability to prevent or restrict such collection or dissemination, and if the circumvention has no other effect on the ability of any person to gain access to any work. Interestingly, this provision permits acts of circumvention to protect privacy, but does not specifically permit the development and distribution of the means of effectuating that circumvention.
Exemption for Nonprofit Libraries, Archives, and Educational Institutions. The DMCA provides an exemption for nonprofit libraries, archives, and educational institutions to gain access to a commercially exploited copyrighted work solely to make a good faith determination of whether to acquire such work.17 A qualifying institution may gain access only when it cannot obtain a copy of an identical work by other means and access may not last longer than necessary. Such an entity is not allowed to use this exemption for commercial advantage or financial gain. Here, too, the provision does not specifically permit the development and distribution of the devices necessary to effectuate the permitted circumvention.18
Certain Analog Devices and Certain Technological Measures. Title I contains a provision which specifically addresses the protection of analog television programming and prerecorded movies in relation to recording capabilities of ordinary consumer analog video cassette recorders. It requires analog video cassette recorders to conform to the two forms of copy control technology that are in wide use in the market today - the automatic gain control technology and the colorstripe copy control technology.19 The provision prohibits tampering with these analog copy control technologies to render them ineffective by redesigning of video recorders or by intervention of "black box" devices or "software hacks."
As an essential element of this provision, Congress included specific encoding rules to preserve long-standing consumer home taping practices. Copyright owners may use these technologies to prevent the making of a viewable copy of a pay-per-view program or a prerecorded tape, for example, but cannot limit the copying of traditional over-the-air broadcasts or basic and extended tiers of programming services, whether provided through cable or other wireline, satellite, or future over-the-air terrestrial systems. In addition, copyright owners may only utilize these technologies to prevent the making of a ’second generation’ copy of an original transmission provided through a pay-television service.
This provision becomes effective in eighteen months. Professional devices and Beta and 8mm VCRs, however, are exempt from its requirements.
Copyright Management Information - New Section 1202
The DMCA prohibits tampering with copyright management information (CMI). Specifically, the DMCA creates liability for any person who intentionally provides or distributes false CMI.20 Also, the DMCA prohibits intentional removal or alteration of CMI, and knowing distribution of illegally modified CMI is similarly proscribed.21 To be covered by the DMCA, CMI must be conveyed in connection with a copyrighted work and CMI may constitute any of the following:
- information that identifies the copyrighted work, including the title of a work, the author, and the copyright owner;
- information that identifies a performer whose performance is fixed in a work, with certain exceptions;
- in case of an audiovisual work, information that identifies the writer, performer, or director, with certain exceptions;
- terms and conditions for use of the work;
- identifying numbers or symbols that accompany the above information or links to such information, for example, embedded pointers and hypertext links; or
- other information as the Register of Copyrights may prescribe by regulation, with an exception to protect the privacy of users.22
Limitations on Liability. The DMCA recognizes special problems that certain broadcasting entities may have with transmission of CMI. Such entities include radio and television broadcasters, cable systems, and persons who provide programming to such broadcasters or systems. Those entities which do not intend to induce, enable, facilitate or conceal infringement may limit their liability in certain circumstances.23
In the case of an analog transmission, a transmitting entity will not be held liable for violating the DMCA if it is not "technically feasible" to avoid the violation or if avoiding the violation would "create an undue financial hardship."24 In the case of an digital transmission, the DMCA contemplates voluntary digital transmission standards for the placement of CMI.25 Different standards are likely to be set for the placement of CMI in different categories of works. If a digital transmission standard is set in a voluntary, consensus standard-setting process involving a representative cross-section of the relevant copyright owners and relevant transmitting industry, a transmitting entity will not be held liable for a third party’s placement of CMI that deviates from the standard, provided that the entity does not intend to induce, enable, facilitate or conceal infringement. Until such a standard is set for a category of works, a transmitting entity will not be liable for violation only if the transmission of the CMI would: (1) cause a perceptible visual or aural degradation of the digital signal; or (2) conflict with an applicable government regulation or a certain, applicable industry-wide standard for the digital transmission.26
Civil Remedies and Criminal Penalties The DMCA creates civil remedies and criminal penalties for violations of Sections 1201 or 1202. A civil action may be brought in a federal district court.27 The court has broad powers to grant injunctions and award damages, costs and attorney’s fees.28 The court may also order the impounding, the remedial modification or the destruction of the devices or products involved in the violation. The court may punish repeat offenders by awarding treble damage awards.29 Generally, it is up to the court to decide whether to reduce damage awards against innocent violators. But, in the case of nonprofit library, archives or educational institutions, the court must remit damages if it finds that a qualifying entity had no reason to know of the violation.30 The DMCA prescribes significant criminal penalties for willful violations committed for commercial advantage or private financial gain.31 Criminal penalties are inapplicable to nonprofit libraries, archives, and educational institutions.32 Technical Amendments Title I also contains a variety of technical amendments. It amends the federal copyright law to grant copyright protection to: (1) sound recordings that were first fixed in a treaty party (a country or intergovernmental organization other than the United States that is a party to specified international copyright and other agreements); and (2) pictorial, graphic, or sculptural works incorporated in a building or other structure or an architectural work embodied in a building located in the United States or a treaty party. The DMCA treats works published in the United States or a treaty party within 30 days after publication in a non-U.S., non-treaty party as first published in the United States or a treaty party for purposes of conferring protection. Title I provides that no works other than sound recordings shall be eligible for protection solely by virtue of U.S. adherence to the Geneva Phonograms Convention or the WIPO Performances and Phonograms Treaty. It revises the definition of "eligible country," for purposes of provisions regarding copyright in restored works, to include nations other than the United States that: (1) become World Trade Organization member countries after the date of enactment of the Uruguay Round Agreements Act; (2) are or become nations adhering to the Berne Convention; (3) adhere to the WIPO Copyright or Performances and Phonograms Treaties; or (4) become subject to a certain presidential proclamation of copyright restoration after such enactment date. It includes sound recordings in the definition of "restored work" if the source country for the work is an eligible country solely by its adherence to the WIPO Performances and Phonograms Treaty.