President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) on October 28, 1998. The law was designed to address problems in copyright laws created by evolving technology. The law was also passed to address international concerns regarding copyright. In 1996, the World Intellectual Property Organization (an agency of the United Nations) passed the Copyright Treaty and the Performances and Phonograms Treaty. This treaty provided for increased protection for copyrighted materials that are in digital form. Signers of the treaty agreed to implement laws to enforce the treaties. The United States is a signatory to the treaty, and the DMCA implemented the treaty on behalf of the U.S.
DMCA goes beyond prior copyright infringement laws. It provided for enhanced penalties for copyright infringement on the Internet. DMCA also criminalizes production and dissemination of technology that is used to circumvent measures taken to protect copyright.
Title I contains provisions that focus on conduct that is intended to circumvent technological measures protecting copyrighted works. It is illegal to “manufacture, import, offer to the public, provide, or otherwise traffic any technology, product, service, device, component, or part thereof,” when its primary purpose is to circumvent “a technological measure that effectively controls access to” a copyrighted work. DMCA imposes criminal penalties for such circumvention.
Circumvention devices may be either actual physical medium or digital files that allow for content protection devices put on films, videos, music CDs and the like. An example of unauthorized circumvention devices is the software utility DeCSS, which can break copy protection on DVDs. Using DeCSS, a movie can be decrypted and illegally copied on a computer’s hard drive. Two other circumvention devices are the so-called “black boxes” and macrovision defeators.
Two cases demonstrate DMCA’s dual role with civil and criminal provisions. In a ruling in a civil case in early 2004, a federal judge from the Northern District of California halted a company from selling DVD copying software, in the case of 321 Studios v. Metro Goldwyn Mayer Studios. Judge Susan Ilston enjoined 321 from manufacturing, distributing or otherwise trafficking in DVD circumvention software. Another case, also from the Northern District of California, involved a criminal prosecution under DMCA. In U.S. v. Elcom Ltd., the government obtained a conviction against a company that marketed a product for the unauthorized reproduction and distribution of electronic books.