A challenge for libraries and library customers appeared with the introduction of the Digital Millennium Copyright Act of 1998 (DMCA).[i] This act prohibits production and dissemination of technology, devices, or services intended to circumvent measures such as digital rights management (DRM) that control access to copyrighted works. For example, popular films on DVDs often have Macrovision® copy protection included to prevent consumers from making illegal copies of a DVD’s film content. There are software packages which work around these copy protection measures; however the DMCA makes their use illegal. Yet, there are exceptions for certain instances with Fair Use for librarians and educators. For more about the DMCA, see http://www.copyright.gov/legislation/dmca.pdf. Section 1201 Exemptions to the DMCA are implemented approximately every three years to address these Fair Use arguments.  See copyright office site for latest postings @ http://www.copyright.gov/1201/.

Some scientists, educators, and librarians have opposed certain aspects of the DMCA, as it was promoted by commercial entertainment and software content industries. For example the Electronic Frontier Foundation published Unintended Consequences: Twelve Years under the DMCA which provides some background on such viewpoints. NOTE: The IPAC understands the needs of opposing viewpoints, yet it always promotes legal and ethical use of others' intellectual works. We provide this perspective for informational purposes only. The UCLA Online Institute for Cyberspace Law and Policy provides a succinct overview of the complicated (and often confusing) DMCA:

  • Makes it a crime to circumvent anti-piracy measures built into most commercial software.
  • Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.
  • Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems.
  • Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.
  • In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
  • Service providers, however, are expected to remove material from users’ websites that appears to constitute copyright infringement.
  • Limits liability of nonprofit institutions of higher education – when they serve as online service providers and under certain circumstances – for copyright infringement by faculty members or graduate students.
  • Requires that “webcasters” pay licensing fees to record companies.
  • Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while “maintaining an appropriate balance between the rights of copyright owners and the needs of users.”
  • States explicitly that “nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use...”[ii]

As revealed in the overview above, the DMCA involves provisions dealing with ISPs (Internet Service Providers) such as commercial providers like Google, YouTube, and noncommercial ISPs such as universities. A good example of this is often seen on YouTube, when one returns to a link for a favorite site and it’s no longer viewable as it has been removed due to copyright restriction. The introduction of the DMCA initiated a controversial information rights debate between copyright owners and copyright consumers as the federal government had to balance between the exclusive “copyright law” rights of copyright owners and the free flow of information to copyright consumers on the Web. Consequently, as copyright owners filed claims against Internet subscribers allegedly infringing upon copyright owners, laws such as the DMCA were passed. Title II of the DMCA, a portion known as the Online Copyright Infringement Liability Limitation Act, divides limitations on the liability of Internet Service Providers (ISP) for copyright infringement into three categories: direct liability, vicarious liability, and contributory liability.[iii]

Direct liability may result from the direct infringement by an ISP, while vicarious and contributory liability may result based on some actions of subscribers of an ISP.  Copyright for educators expert Kenneth Crews points out that:

"A company or another party can be held liable for the actions of another person on at least two theories. Contributory infringement can occur when someone provides the equipment or other means for creating infringements and knows, or should have known, of the infringing actions. Vicarious liability can occur when someone has the right to supervise the activity and stands to benefit from it. Knowledge of the infringing activity is not necessary. Employers are often in exactly that situation, at least with respect to activity that are part of an employee’s job."[iv]

So, could a nonprofit university be liable when a student has infringed copyright on the school’s Internet service? Based on the statement of Kenneth Crews above, a school could be liable depending on the level of oversight and knowledge. Congress included a safe harbor within the DMCA to address this challenge. However, we only present brief particulars here about such a safe harbor for information awareness. For more details about the DMCA, see http://www.copyright.gov/legislation/dmca.pdf.

[i] 112 Stat. 2860 (1998).

[ii] UCLA Online Institute for Cyberspace Law and Policy, http://legacy.gseis.ucla.edu/iclp/dmca1.htm, accessed 16 November, 2012.

[iii] Jennifer Kostyu, “Copyright Infringement on the Internet: Determining the Liability of Internet Service Provider,” Catholic University Law Review, Volume 48 (1998-99).

[iv] Kenneth Crews, Copyright Law for Librarians and Educators, (Chicago: ALA, 2012) page 104.
 

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