Jonathan Band’s DMCA Memo
TITLE I: WIPO TREATIES IMPLEMENTATION
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.
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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.
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