If you’re a part of the music industry at any stage, you’ve almost certainly heard of the Digital Millennium Copyright Act (DMCA). Yet despite being over 15 years old, many industry professionals don’t have a firm grasp on what it means or how it works.
What is the DMCA?
As the internet’s popularity exploded in the late 1990s, media industry executives from Hollywood to Nashville and abroad were searching for a way to protect their intellectual property online. To that end, the World Intellectual Property Organization (WIPO) implemented new copyright policies in 1996 for their member nations to adopt. Their role as the primary rights protection organization on the planet assured that most nations would adopt similar rules.
The United States government convened to create updated legislation that both aligned with the new WIPO treaties and established protections for businesses operating in the new digital world. It was named the Digital Millennium Copyright Act, signed into law by President Clinton in 1998.
While a complicated piece of legislation, the DMCA has three major points of interest for music industry professionals: (1) making circumvention of Digital Rights Management (DRM) illegal, (2) providing ISPs, web hosts, search engines, and other “interactive services” immunity when its users infringe on copyright, and (3) updating compulsory license law to include webcasting.
DRM & Anti-Circumvention
Many pundits credit the anti-circumvention measures in the DMCA (Title I) with the proliferation of technologies like the DVD and the subsequent success of companies like Blockbuster and Netflix. From an industry standpoint anti-circumvention measures made adopting emergent technology much easier. However, some like the Electronic Frontier Foundation now posit that these same anti-circumvention measures are stifling innovation and “have not been used as Congress envisioned.”
Whatever the case may be in regard to anti-circumvention, arguably the far more important part of the DMCA is Title II, which deals with “Safe Harbor” legislation. This section also lays out the groundwork for what we now know as the DMCA Takedown Notice, and its importance in the modern music and technology industries cannot be overstated.
DMCA Safe Harbor
Piracy of copyrighted materials such as master recordings or movies doesn’t just involve the end user and pirate. Transmission of pirated material often involves internet service providers (ISPs), hosting services such as GoDaddy, search engines such as Google, and “interactive services” such as Soundcloud and YouTube — usually without their knowledge.
Safe Harbor provisions protect these companies from legal action related to copyright infringement on their networks, so long as they implement specific takedown procedures. This protection was pivotal to the internet as we know it today. Services like YouTube, lacking these protections, could be buried in direct litigation for material residing on their servers that infringed a rights holders copyright.
To qualify, a service provider must 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
DMCA Takedown Notices
So, what happens when an artist, songwriter, publisher, label, or other rights holder discovers their work improperly hosted on one of these services? The rights holder submits a DMCA Takedown Notice to the service provider requesting the material be removed. That notice, given to the service provider’s listed DMCA agent, sets in motion a series of actions:
- Upon receiving the Takedown Notice, the service provider must remove the work in question and inform the Original Poster (OP) of the action.
- The OP now has the option to counter the claim of copyright infringement by providing notice of their right to use or post the work in question. If they do not, the work stays removed.
- If the OP does submit a counter-notice, the rights holder has 14 days to issue a lawsuit or the material will be reinstated as the OP had posted.
Writing a DMCA Takedown Notice is easy, as this article on WikiHow shows. Similarly, writing a DMCA counter-notice is easy. In both cases, you must identify yourself, the material, your claim to the material, and state both the verity of your claim and your consent to the proper legal jurisdiction.
Takedowns themselves don’t have a set time frame, only “expeditious” action is required. Different service providers have different interpretations of “expeditious,” and the time between a Takedown Notice submission and the actual takedown varies. Some services like Muso will automate this process for you, sending notices, follow-ups, and aiding in the legal process.
If the OP has no counter-claim to the Takedown Notice, the takedown is complete. Certain service providers levy penalties on posters for having successful DMCA Takedowns leveraged against them. Others simply remove the content and move on.
If the OP does have a counter-claim, a protracted legal case is possible but unlikely. In many cases the Takedown Notice is merely an oversight and the counter-claim ends the conversation. If this is the case, the rights holder is then liable to the OP for any damages resulting from improper removal. In the event that the rights dispute does make it to court, cases can sometimes last a year or more.
As the landscape becomes more complex, service providers are seeing their Safe Harbor come into question more often. This has lead some to speculate that Safe Harbor protection is less robust than it used to be. In any event, the DMCA Takedown Notice system remains the primary way for rights holders to remove infringing material from services without penalizing their providers.
Title IV of the DMCA also largely expanded compulsory licensing. Compulsory licensing is a part of copyright law that allows an individual or company to use another’s intellectual property without first seeking the rights holder’s consent. In exchange, that individual or company pays the rights holder a set fee for the license.
Essentially, the rights holder is required to allow another entity to use their copyrighted material, in exchange for royalties at a rate set by Congress (the Statutory Rate). Prior to the DMCA, compulsory licenses were granted for things such as jukeboxes, cable broadcasts, or use on public broadcasting stations.
The DMCA expanded the umbrella of compulsory licensing to include “webcasting.” This opened the door for things like simulcasting of television events, streaming of concerts, and other synchronized licenses to exist as compulsory licenses, rather than be subject to pre-arranged deals. This also removed a large barrier for fledgling fields like podcasting and online radio.
One More Thing: Boats?
Title V of the DMCA added a unique copyright protection: boat hulls. Hull designs were not covered under copyright law because they are useful articles whose form cannot be clearly separated from their function. So if you’re a musician or label owner who also builds boats in their spare time — you have another reason to love the DMCA.
Read the full U.S. Copyright Office Digital Millennium Copyright Act summary here.