Digital Millennium Copyright Act
Copyright Protection or Control: The Digital Millennium Copyright Act Debate and the Information Sciences
Annotations by Sarah Conrad
Definition of Project
This project provides an understanding of the Digital Millennium Copyright Act (DMCA) and its affect on the library and information sciences. The DMCA is an integral part of the information field as well as many other fields because it has helped shape copyright laws for the digital world. This bibliography provides resources that both discuss the DMCA in more detail as well as how the DMCA has played both a positive and negative affect on librarians and library patrons. Specific sub-topics in this bibliography include lengthy discussions of the DMCA’s Titles I and II, which have the most impact on the information field, how the DMCA has altered copyright law and affected the information field, as well as arguments both for and against the implementation of the DMCA. Publications for this bibliography were chosen based on their discussion of the DMCA in detail as well as for how well they provided quality information about the influence the Act plays in the information field. To gather this research, a variety of methods were used. Access to the Wayne State Databases was utilized, especially the Library Literature and LISA databases that focus on Information Science. Structured queries were used for research, including the Boolean query, “Digital Millennium Copyright Act” AND preservation, as well as “Digital Millennium Copyright Act” AND librar*. Other research methods included narrowing search results to scholarly publications published after 2006, searching publications and court cases on Google Scholar, and reviewing the footnotes of reliable sources for more publications. The resources that provide the best understanding of the DMCA as well as how it affects the library and information science world were included into this bibliography to help readers understand the Act and how it has sparked a heated debate among information professionals.
Annotations
Anderson, B.(2006). A primer on copyright law and the DMCA. The Reference Librarian, 45(93), 59-71. Retrieved from: http://www.tandfonline.com/doi/abs/10.1300/J120v45n93_05
Byron Anderson’s article focuses on the issues that the DMCA has created for copyright users and libraries, specifically with the Act’s anti-circumvention regulations. These regulations in Title I create more barriers for accessing digital content and are meant to protect against unlawful use, but they also limit fair use (p. 64). This is an important topic for many information professionals who provide access to copyrighted materials through fair use. While other articles in this bibliography provide a balanced argument of advantages and disadvantages of the DMCA, Anderson focuses on how the DMCA has negatively affected both libraries and researchers and ways in which professionals have fought back against the Act. Anderson supports his arguments by providing quotations from legal experts, copyright and cyber law specialists, and library professionals. This article is a valuable tool for understanding the frustration that the DMCA creates for library professionals and researchers who find it more difficult, if not impossible, to access needed information because of the Act’s anti-circumvention rules.
Davis, T. & Fiander, P. M. (2001). The digital millennium copyright act: Key issues for serialists. The Serials Librarian, 40(1/2), 85-103. Retrieved from http://www.tandfonline.com/doi/abs/10.1300/J123v40n01_09
This paper, resulting from a presentation by Trisha Davis and its subsequent transcription by Michelle Fiander offers an excellent overview and understanding of both what the DMCA entails and how it affects libraries and the information sciences. Copyright can be very complicated, and in order to better understand copyright actions like the DMCA, Davis’s article offers background information of copyright as well as how the DMCA was formed. While other articles discuss specific issues of the DMCA in detail, this article offers an overview of the five titles that are included in the DMCA, and a more in-depth description of the Titles that most affect the Information Field. Title I of the act, the WIPO Treaties Incorporation, includes the highly contested anti-circumvention regulations (p. 92). Title II, the Online Copyright Infringement Liability Limitations Act, deals with creating safe harbors for internet service providers that provide third-party content (p. 92). Title III, Computer Maintenance Competition Assurance Act, covers regulations for copying computer programs (p. 92). Title IV, Miscellaneous Provisions, details six provisions that do not fit into the other titles. Davis and Fiander provide details of the two provisions that effect librarians the most, regarding exemptions for digital preservation copies and “the charge to the Copyright Office to make recommendations on distance education” (pp. 92-93). The final Title, Protection of Certain Original Designs, has little impact on the information field, but describes how vessels under 200 feet long are copyright protected with a design instead of the actual vessel (p. 93). Davis goes on to provide in-depth details of Titles I, II, and IV and how these three have the greatest impact on the Information Field, whether it is beneficial, such as with Title IV, or detrimental, as with Titles I and II. Beyond its beneficial information, this article is useful because it is written in an easy-to-understand style that helps make the otherwise very complicated DMCA more accessible to the public.
Henderson, H. (2014). The evolution of the digital millennium copyright act: Changing interpretation of the DMCA and future implications for digital copyright holders. AIPLA Quarterly Journal 42(2), 245-264.
Like previous articles, Henderson offers an excellent understanding of the DMCA’s most controversial title regarding anti-circumvention regulations. However, she also spends a large portion of the article discussing the second Title of the DMCA, which creates safe harbors for Internet Service Providers (ISP’s) that provide third party content (p. 255). These safe harbors create protections for Internet Service Providers from being sued for copyright infringement. However, it also negatively affects copyright holders whose work may be restricted, often unfairly (p. 258). Henderson’s discussion of this second Title provides valuable insight into how the Title operates and how it counteracts the regulations put in place by Title I, causing more controversy over the validity of the DMCA in general (p. 248). The article discusses the controversies of both Titles and provides relevant and valuable examples of court cases involving the DMCA. A large part of the DMCA debate revolves around the Act’s first Title, but this article also discusses the implications of the Act’s second Title, which should not be overlooked. As the Davis and Fiander article pointed out, librarians should not ignore Title II, as libraries can be considered ISP’s and are impacted by the DMCA safe harbors. Henderson’s article thus provides valuable insight into Title II and safe harbors that are necessary for any information professional to understand.
Jeanneret, C. (2001). The digital millennium copyright act: Preserving the traditional copyright balance. Fordham Intellectual Property, Media & Entertainment Law Journal 12(1), 157-194.
This valuable resource from Christine Jeanneret provides a balanced discussion of the key issues regarding the DMCA. While Jeanneret does support the new provisions created by the DMCA, this article provides a thoughtful discussion of countering viewpoints of the act’s main clause that creates anti-circumventing regulations. Jeanneret discusses the main arguments against the DMCA, primarily the Act’s unjust expansion of the control copyright companies have through Title I (p. 159). She provides ample support for this argument from other information professionals such as David Nimmer and Jane Ginsburg who believe the DMCA takes away fair use rights of researchers (p. 159). The article also spends sufficient time covering the opposing viewpoint that suggests the regulations put in place by the DMCA are beneficial to copyright because they protect resources from being illegally accessed online. To support this stance, Jeanneret provides evidence from Mary Beth Peters, the Register of Copyrights as well as from important legal cases such as Universal City Studies, Inc. v. Reimerdes, whose ruling upheld the DMCA regulations (p. 168, 183). By including both viewpoints this article does an excellent job of outlining the arguments both for and against the DMCA instead of focusing on only one side of the debate. This offers readers an unbiased understanding of both sides of the DMCA debate.
Landau, M. (2001). Has the digital millennium copyright act really created new exclusive right of access: Attempting to reach balance between users' and content providers' rights. Journal of the Copyright Society of the U.S.A. 49(1), 277-312.
Similar to Jeanneret’s article, this publication provides a balanced discussion of the issues surrounding the DMCA, mainly its anti-circumvention regulations and the issue of the public’s right to access. Through the use of both hypothetical examples and court cases, Landau’s article provides a balanced discussion of both benefits and issues of the DMCA’s Title I. On one hand, Landau discusses the argument many professionals have about the anti-circumvention laws taking away public access rights. While on the other side of the argument, copyright holders use this Title to provide more protection to copyrighted works to prevent theft. Landau also offers valuable insight into this argument through the Universal Studios v. Reimerdes case, whose verdict upheld the anti-circumvention regulations. The Reimerdes case helped validate the DMCA’s anti-circumvention regulations, but has also created a shift in copyright regulations towards favoring copyright owners over the copyright users (p. 303). Overall this article is an excellent resource for anyone looking to understand the main arguments on both sides of the DMCA’s anti-circumvention debate as well as one of the most debated court cases involving the DMCA.
Lee, E. (2008). Decoding the DMCA safe harbors. Columbia Journal of Law & the Arts, 32(3), 233-270.
Edward Lee’s article, like Henderson’s, provides a detailed discussion of the DMCA’s Title II, which involves safe harbors. While Henderson discusses Title II in general and Trisha and Fiander explain how Title II impacts librarians, Lee’s article focuses more on the contradiction issues of Title II. Many professionals opposed to the DMCA cite the “loophole” of Title II that counteracts the safe harbors it creates (p. 236). This “Loophole Theory” is a major concern for proponents of the DMCA, as well as a major reason many professionals disapprove of the Act. While Lee does not agree with the “Loophole Theory,” he does believe Title II includes too many inconsistencies that contradict other Titles, such as Title I, in the DMCA (p. 234). Previous articles, such as the Henderson article, briefly touch on these contradictions, but do not provide much detail. Lee does an excellent job of describing the issues of Title II, such as the “Loophole Theory” that impact the validity of the Title and the DMCA. Since Title II plays an important role in the functioning of libraries, this article is important for understanding the issues surrounding the Title and the DMCA as a whole. This article also works well alongside others in this bibliography to help form a fuller understanding of the issues in the DMCA’s Title II.
Library of Congress. (1998). The digital millennium copyright act of 1998: U.S. Copyright Office summary. Washington, D.C.: Copyright Office, Library of Congress. Retrieved from https://www.copyright.gov/legislation/dmca.pdf
The Digital Millennium Copyright Act is a long and complex document that is difficult to understand. The office summary provided by the Library of Congress offers a detailed description of the Act without the massive length or complicated jargon. This resource provides descriptive overviews of each of the act’s five main titles without any biases for or against them; it describes each act as they are outlined in the DMCA. Along with the actual Act, the copyright summary offers the best description for library professionals looking to understand the complete DMCA. The summary also provides the necessary information for understanding the arguments of the articles found in this bibliography. While other articles in this bibliography discuss aspects of the DMCA, none cover the entirety of the Act like the Office Summary does. Many information professionals may not be copyright experts, and so the Office Summary is the best choice for understanding the full Act without the complicated text in the original document.
Ratliff, J. (2011). The digital millennium copyright (holders) act: An explanation of the current balance of power in digital copyright laws. Library Student Journal, 6. ISSN: 1559-9132.
The Digital Millennium Copyright Act has some major implications for libraries and the information field, and as shown in this article, it has not always been in the best interest of the information field. Jacob Ratliff’s article describes the important and unfortunate truth for libraries under the DMCA. With the enactment of the DMCA, there came a shift of power in the copyright world towards the copyright owners instead of the users. This shift has created major setbacks for institutions like libraries, which offer information freely to users. Under the DMCA, it is harder for libraries to offer services such as Inter-Library Loan because of the Act’s strict regulations of digital objects (p. 3). While previous articles in this bibliography outline how the DMCA’s titles both positively and negatively affect libraries, this article focuses on the impact the DMCA has on fair use both for information professionals and researchers. Fair use is an important part of the copyright laws, and an essential part of librarian’s work. This article is useful for understanding the difficult balance created by the DMCA between the copyright holders who want to protect resources from digital piracy, and librarians and researchers who want to utilize fair use laws for digital research.
Universal City Studios, Inc. v. Shawn C. Reimerdes. 111 F. Supp. 2d 294, (S.D. New York 2000). Retrieved from https://scholar.google.com/scholar_case?case=4887310188384829978&q=digital+millennium+copyright+act+reimerdes&hl=en&as_sdt=80000003
This court case describes one of the most important court decisions regarding the DMCA. The case involves two major complaints from the defendants who believe the DMCA is in violation of fair use and the First Amendment. This case is important to the DMCA debate because its verdict has helped shape how the act is interpreted. The plaintiffs, the Motion Picture Studios, argue that the defendants are in violation of the DMCA’s anti-circumvention regulations by creating computer code that can copy encrypted DVD’s. While the defendants state that the DMCA is in violation of their First Amendment Rights and limits the right of fair use. Ultimately the court ruled in favor of both the plaintiffs and the regulations of the DMCA. This case helps to solidify the validity of the Act despite its unpopularity among proponents of fair use, and can be a valuable tool for information professionals who may be unclear how the DMCA may affect important issues in the library field. Other articles, such as the Jeanneret and Landau articles discuss this case in some detail and review the validity of Reimerdes’ argument as well as the judge’s verdict in favor of the DMCA. This case plays an important role in the DMCA debate and thus is a necessary resource for information professionals to be aware of.
Zimmerman, D. (2001). Adrift in the digital millennium copyright act: The sequel. University of Dayton Law Review, 26(2), 279-292.
One of the main reasons the DMCA was created was to help protect digital materials against copyright infringement. The nature of the digital world makes monitoring copyright infringement very difficult and the new regulations of the DMCA, such as the anti-circumvention laws, were meant to help counteract this. However, as Zimmerman argues in her article, these new tougher regulations have done very little to help the information field and have even limited fair use of copyrighted materials (p. 280). This article discusses how the inequalities of the DMCA’s Title I favor copyright creators over the copyright users (p. 280-281). While the DMCA tries to lessen the impact on public service fields such as libraries and archives through exemptions outlined in Title IV, this article shows how these exemptions do very little to truly help the information field (p. 283). While the threat of copyright infringement is very serious, especially for digital materials, Zimmerman believes the DMCA provides too much protection for digital materials that it hinders their use, especially in institutions like libraries. This article is a valuable part of this bibliography because while Zimmerman does not agree with the new regulations of the DMCA, she does not condemn the Act so much as discuss how the Act negatively impacts libraries and how it can improve while still protecting digital materials (p. 290).
