Digital Millennium Copyright Act

WIPO Copyright and Performances and Phonograms Implementation Act

The WIPO Copyright and Performances and Phonograms Implementation Act prohibits the circumvention of technologies, also known as digital rights management, or DRMs, that have been installed to prevent online infringement. For example, copyright holders often install programs requiring computer users to enter passwords in order to access specified files or applications. Copyright holders may also encrypt data or files to prohibit access by outsiders. The DMCA prohibits circumvention of these “technological protection measures.” Section 1201 of the DMCA distinguishes between technological measures that restrict access to copyrighted works and those that restrict copying. This categorization is designed to ensure that fair use continues. In some cases, copying works is considered fair use, while in others unauthorized access may be deemed unfair.

The DMCA targets the manufacture, distribution, and use of computer programs designed to circumvent or decrypt protection devices. Even so, the DMCA includes several prominent exceptions, many of which are applicable in higher educational settings. Insofar as the DMCA does not forbid the following circumvention activities, they are fair uses of copyrighted works:

Persons who are injured by violations of Section 1201 may bring civil actions for equitable and monetary damages. Violations may also be subject to criminal sanctions. However, the DMCA exempts nonprofit libraries, archives, and educational institutions from criminal liability. Furthermore, the DMCA affords special protection to nonprofit libraries, archives, and educational institutions that may be entitled to complete remission of damages in circumstances where violators prove that they were unaware and had no reason to believe the alleged acts were infringing.

Online Copyright Infringement Liability Limitation Act

The second element in the DMCA is the Online Copyright Infringement Liability Limitation Act, which protects Internet service providers (ISPs) against infringement liability for the acts of their subscribers. For instance, if computer users who are given access to the Internet through service providers access, store (long term or short term), or transmit material that is unlawfully obtained, the users face liability for infringement rather than the ISPs. To the extent that most, if not all, colleges and universities offer Internet access to their students, staff, faculty, and sometimes visitors, they may qualify for these limitations on liability. Still, the burden of proof is on institution leaders to establish that officials lacked actual knowledge or awareness that the infringing activity was occurring, and institutions must not play substantive [Page 122]roles in identifying the infringing content or directing or communicating the transmission of the infringing material. ISPs also must act to remove infringing material or disable infringing conduct on notification of claimed infringements (also called “take-down notice”). Limitations on liability apply only to those ISPs that have established and implemented policies, such as university acceptable use policies that provide for the termination of accounts, subscriptions, and/or computer use privileges of repeat violators. Officials at colleges and universities must continue to provide access to sites that are pay-per-access or password protected.

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