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.