The Internet poses a variety of challenges to traditional copyright law. Notably, the Internet facilitated new avenues for potential infringement. Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to address these new challenges.[1] Namely, the DMCA served as a response to the increase in Internet piracy and sought to promote e-commerce by strengthening the protection of copyright holders.[2] In doing so, the DMCA officially implemented two World Intellectual Property Organization (WIPO) treaties: WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.[3]
Central Components of the DMCA
Two central principles animate the DMCA: anti-circumvention and anti-trafficking. Both are embodied in Sections 1201 and 1202.
Section 1201 details three key prohibitions. First, Section 1201(a)(1)(A) prohibits the circumvention of access controls—technical measures intended to secure a digital item.[4] Second, Section 1201 prohibits individuals from manufacturing or trafficking in devices that enable another individual to circumvent access controls.[5] Third, Section 1201 additionally prohibits the manufacture or trafficking in devices or technology that enables the circumvention of a copyright’s protections.[6]
On the other hand, Section 1202 focuses on copyright management information. It is illegal to knowingly falsify, remove, or alter copyright management information.[7] It also prohibits intentionally facilitating the infringement of management information or the infringement by distributing copies where the copyright information has been removed.[8]
Remedies for a DMCA Violation
Violations of these provisions can result in civil actions under section 1203 or criminal prosecution under section 1204. Section 1203 allows those suffering an injury because of a Section 1201 or 1202 violation to bring a civil action in a U.S. district court.[9] As a remedy, a court may: grant temporary and permanent injunctions; order the impounding of any device that the court has reasonable cause to believe was involved in the violation; award damages; allow the recovery of costs; and more.[10]
Section 1204, however, outlines the potential penalties for criminal violations of the DMCA. This applies if an individual violates Section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain.[11] Criminal violations carry a maximum penalty of five years’ imprisonment, a $500,000 fine or twice the monetary gain or loss, or both imprisonment and a fine.[12] However, the criminal punishment increases to ten years’ imprisonment, a $1 million fine or twice the monetary gain or loss, or both imprisonment and a fine for subsequent offenses.[13]
Possible Defenses to a DMCA Violation
Among the defenses, exceptions, and exemptions to the DMCA are the Statute of Limitations, Librarian of Congress Regulations, Certain Non-Profit Entities, Information Security Exemption, Reverse Engineering and Interoperability of Computer Programs, Encryption Research, Restricting Minors’ Access to the Internet, Protection of Personally Identifying Information, Security Testing, and challenges to the constitutionality of the DMCA.[14]
White Collar Defense Attorneys
Freeman Law represents companies, executives, and individuals in regulatory and white-collar government investigations and prosecutions. We employ a proactive approach to defend vigorously and strategically position our clients. White-collar matters often involve parallel regulatory and civil proceedings. Freeman Law can navigate the complexities and collateral consequences of multiple proceedings. And when it comes to the court of public opinion, we employ ethical and strategic tactics to manage publicity. Schedule a consultation or call (214) 984-3000 to discuss your allegations and investigations concerns.
[1] The Digital Millennium Copyright Act of 1998, U.S. Copyright Off., (last accessed July 15, 2021).
[2] Office of Legal Educ. Exec. Off. Of U.S. Att’ys., Prosecuting Intellectual Property Crimes 233 (4th ed. 2013).
[3] The Digital Millennium Copyright Act of 1998, U.S. Copyright Off., (last accessed June 25, 2021).
[4] 17 U.S.C. § 1201(a)(1)(A).
[5] 17 U.S.C. § 1201(a)(2).
[6] 17 U.S.C. § 1201(b).
[7] 17 U.S.C. §§ 1202(a)(2), (b)(2).
[8] 17 U.S.C. § 1202(b)(3).
[9] 17 U.S.C. § 1203.
[10] 17 U.S.C. § 1703(b)(1)–(6).
[11] 17 U.S.C. § 1204(a).
[12] 17 U.S.C. § 1204(a)(1).
[13] 17 U.S.C. § 1205(a)(2).
[14] Office of Legal Educ., supra note 2, at 263–79.
