§ 3.02 Digital Millennium Copyright Act
| Jurisdiction | United States |
| Publication year | 2020 |
§ 3.02 Digital Millennium Copyright Act
Congress intended the Digital Millennium Copyright Act (DMCA) "to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age."8 It was passed to address the perceived need of copyright owners for "legal sanctions" to enforce various technological measures they had adopted to prevent the unauthorized reproduction of their works.9 It also served to conform United States copyright law to its obligations under two World Intellectual Property Organization (WIPO) treaties, which require contracting parties to provide effective legal remedies against the circumvention of protective technological measures used by copyright owners.10
In general, the DMCA amends the Copyright Act by prohibiting the act of circumvention of technological measures11 used by copyright owners to protect their works and by prohibiting the distribution of tools and technologies used for circumvention.12 It also bans tampering with copyright management information.13 What it does not do is almost as important as what the DMCA does attempt to do. It creates new "causes of action for liability," not new property rights.14 In other words, the goal of the DMCA is to "strengthen copyright protection in the digital age."15 Section 1204 of the Copyright Act makes it a criminal violation to violate either of these two provisions for purposes of commercial advantage or private financial gain. In order to establish a criminal violation of the DMCA, the government must first prove the elements of a civil DMCA violation. Accordingly,16 this discussion first focuses on the general requirements of Sections 1201 and 1202.
[1] Section 1201: Circumvention of Technological Protection Measures
Section 1201 contains three prohibitions. First, Section 1201(a) prohibits the act of circumvention of technological measures17 that are designed to "effectively,"18 control unauthorized access to a copyrighted work. Copyright infringement is not required to state a claim under this section.19 The Librarian of Congress is required to promulgate regulations every three years exempting from this subsection individuals who would otherwise be "adversely affected . . . in their ability to make noninfringing uses. . . ."20
The next two Sections are the "anti-trafficking provisions." Section 1201(a)(2) prohibits the manufacture of or trafficking in products or technology designed to circumvent a technological measure that controls access to a copyrighted work. Section 1201(b) prohibits the manufacturing of or trafficking in products or technology designed to circumvent measures that protect a copyright owner's rights under the Copyright Act.
Although both subsections prohibit trafficking in a circumvention technology, the focus of subsection 1201(a)(1)-(2) is circumvention of technologies designed to prevent access to a work. Congress found this to be "the electronic equivalent of breaking into a locked room in order to obtain a copy of a book."21 Thus, Section 1201(a) only protects initial access to copyrighted works, not subsequent access.22
In contrast, the focus of Section 1201(b) is circumvention of technologies designed not to permit access to a work, but to prevent copying of the work or some other act that infringes a copyright.23 In other words, it "reinforce[s] copyright owners' traditional exclusive rights under § 106 by granting them an additional cause of action against those who traffic in circumventing devices that facilitate infringement."24 ("These exclusive rights are reproduction, distribution, public performance and creation of derivative rights.").25 The digital lock constitutes a copy control "if the measure in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title."26 Section 1201(a)(1) differs from both of these anti-trafficking provisions in that it targets the use of a circumvention technology, not the trafficking in such a technology.
This does not mean, however, that a defendant cannot be liable under § 1201(a)(1) and copyright infringement in violation of § 106. "Thus, for example, if a movie studio encrypts a DVD so that it cannot be copied without special software or hardware, and an individual uses his own software to 'crack' the encryption and make copies without permission, the studio may pursue the copier both for simple infringement under the Copyright Act and, separately, for his circumvention of the encryption . . . under the DMCA."27
Congress did not ban the act of circumventing the use restrictions but, rather, banned only the trafficking in and marketing of devices primarily designed to circumvent the use restrictions of protective technologies because it sought to preserve the fair use rights of persons who had lawfully acquired a copy of the work.28 The rights of a copyright owner include those listed in Section 106, i.e., the exclusive rights to reproduce the copyrighted work, to prepare derivative works, to distribute copies, to perform the copyrighted work publicly, and to display the copyrighted work publicly.
[a] Elements
To prove a criminal violation of Title 17, Sections 1201(a)(1)29 and 120430 of the United States Code, the government must establish beyond a reasonable doubt that the defendant: (1) willfully (2) circumvented (3) a technological measure that effectively controls access (4) to a copyrighted work and (5) for commercial advantage or private financial gain. In contrast, to establish a civil violation under § 1201(a)((1)(a), the plaintiffs must prove that (1) they employ "technological measure[s] that effectively control[ ] access to a work protected" by copyright; and (2) defendant "circumvent[s]" those measures.31 The Federal Circuit has held that, in addition, a plaintiff must also establish that the unauthorized access must also infringe or facilitate infringing a right protected by the Copyright Act.32
[i] Willfully
The term "willfully" is not defined in the DMCA but should be given the same understanding as used in the context of criminal copyright infringement. Indeed, the legislative history states that the "applicable standard under this section is identical to the standard used in Section 506 of the Copyright Act to establish criminal violations."33 The term "willfully," however, is also not defined in the Copyright Act, and the legislative history of the 1992 Copyright Felony Act suggests that Congress intended for the courts to define "willfully."34 The issue that has arisen with regard to the use of the term "willfully" in the criminal copyright context is whether the government is required to establish that the defendant acted with specific intent to violate someone's copyright or whether it is enough that the defendant acted with the general intent to copy. In other words, to infringe willfully could simply mean to intentionally commit the act that constitutes infringement. Alternatively, it could mean that the defendant must act with a "'bad purpose' or 'evil motive' in the sense that there was an 'intentional violation of a known legal duty.'"35
The general rule of American legal jurisprudence that ignorance of the law or a mistake of law is not a defense to criminal prosecution has its origins in the common law presumption that every person knows the law. However, the modern proliferation of statutes and regulations "sometimes ma[kes] it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the . . . laws."36 Thus, the government must establish that the defendant acted with "specific intent to violate the law" to be convicted of certain federal criminal offenses.37
Until the 2013 decision, United States v. Liu,38 most courts had simply assumed that proof of the defendant's specific intent to violate someone's copyright was required.39 The Liu court expressly found for the first time that " 'willfully' as used in Title 17, Section 506(a) of the United States Code connotes a 'voluntary, intentional violation of a known legal duty.'"40 This requirement can be "satisfied where there is a showing that the defendant recklessly disregarded 'the high probability that it was infringing plaintiffs' copyrights.'"41
The Liu court noted that if "willfully" were defined to mean to intentionally commit the act that constitutes infringement, it "would not shield any appreciable amount of infringing conduct from the threat of prosecution" which "cannot be the result that Congress sought."42 The appellate court thus found that the district court had committed error "by defining willfulness such that the jury could have convicted Liu without finding that he knew that his actions were unlawful."43
In United States v. Reichert,44 the defendant challenged his conviction on the grounds, among other things, that the jury received an inaccurate "deliberate ignorance" instruction that had the effect of negating the requirement that his conduct be a "willful violation" of the DMCA. The jury found that Reichert was guilty of trafficking in circumvention technology under Section 1201(a)(2)(A) for moderating a website that sold modified video game consoles that allowed users to run software on Xboxes for which the consoles were not originally designed. The court provided the jury with an instruction that defined "willfulness" as "require[ing] the Government to prove that the law imposed duty on the Defendant, that the Defendant knew of this duty, and that he voluntarily and intentionally violated this duty."45 The court also provided the jury with an deliberate ignorance instruction that included: "If you are convinced that the Defendant deliberately ignored a high probability designed to circumvent technological measures designed to effectively control access to a work copyrighted under federal law, then you may find that he knew he was violating the...
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