Vol. 11, No. 4, Pg. 20. The Digital Millennium Copyright Act: A New Sheriff for the New Frontier?.

• Author: By Richard M. Moose and Tara E. Agnew

South Carolina Lawyer

2000.

Vol. 11, No. 4, Pg. 20.

The Digital Millennium Copyright Act: A New Sheriff for the New Frontier?

20The Digital Millennium Copyright Act: A New Sheriff for the New Frontier?By Richard M. Moose and Tara E. AgnewWhere is it? Can you see or hear it? It's everywhere, all around you, instantly transmitting progress as well as problems. We call it the Internet. Combine with that the magic of high-speed, high precision digital technologies and the mystery of intangible intellectual property interests such as copyrights, and a veritable witch's brew of devilish legal problems may bubble from the cauldron of the Internet.

Explosive growth in any new technology sometimes leaves the law in its dust, creating not only a legal horror movie plot but a wild West where rough justice prevails. Like an old Gary Cooper western, the attempted application of law to the modern medium of the Internet has "movie-goers" tense with excitement to see whether justice can or will be done.

Somehow, the sheriff in a classic spaghetti western always seemed to know that the bad guy was coming into town at noon, riding on a horse and arriving in a cloud of dust--easy to spot.

22In the "high-tech" era, a pirate copyright manufacturing facility for video and audio cassettes or CDs might be difficult to find or reach, but at least a flesh and blood target awaits the seizure and injunction order of the pursuing posse. In the digital era, data such as copyrighted text, video or audio resides electronically. What used to require a pirate manufacturing facility to reproduce can now be done over the Internet with several keystrokes--in silence from anywhere in the world and at the speed of light. The old sheriff doesn't stand a chance.

Congress's passage of the Digital Millennium Copyright Act (DMCA) in October 1998 (to take full effect by October 2000) constitutes a pivotal effort by the United States to take the lead in setting higher standards for copyright laws governing digital technologies. The DMCA might be seen as Congress's attempt for a Will Smith remake of The Wild Wild West.

The DMCA addresses issues posed by new digital and online technologies and provides copyright owners better protection of property on the World Wide Web. The Act seeks to ward against many forms of digital piracy, allow copyright owners to seek non-judicial remedies in certain cases of online infringement and place limitations on online service provider liability for online infringement.

WIPO TREATIES IMPLEMENTATION

Title I implements two World Intellectual Property Organization (WIPO) treaties. The first goal of this Title is to prevent digital pirates from circumventing technological measures to gain copyrighted information and to infringe or misappropriate such information. The technological measures are those that control unauthorized "access" to copyrighted material or control the unauthorized "copying" of such copyrighted material.

The Act states that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title" and defines such circumvention as "avoiding, bypassing, removing, deactivating, or otherwise imparing a technological measure." 17 U.S.C. § 1201(a)(1)(A), (b)(2)(A). Section 1201 prohibits circumvention devices and services that are primarily designed or produced for the purpose of circumvention, have only limited commercially significant purpose or use other than to circumvent, or are marketed for use in circumvention.

Many industries fear possible added liability from this Title. For example, video stores have complained that if they rent video cassettes and dual video recorders (as some do), they may be held liable for circumventing technological measures. However, Title I is not intended for such extreme effects but is meant only to strike a fair balance between the rights to copyright owners and users.

Title I of the DMCA sets up several circumvention provision exceptions. For example, non-profit libraries, archives and...