The Digital Millennium Copyright Act, 1998

This article is written by Ayush Tiwari. This article elaborates on what the Digital Millennium Copyright Act is, how it originated, the judicial history attached to it, the major provisions outlined by the Act, and how it has impacted various fields through these provisions.

The US Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. The DMCA was enacted to protect copyrighted works in the digital era. The intention of the lawmakers through the DMCA has been to provide copyright holders with legal instruments to protect their intellectual property, specifically copyright, from online infringement while respecting consumers’ rights to make fair use of copyrighted items. However, since its enactment, the DMCA has been subjected to a lot of considerable discussion and criticism. 

The need for the DMCA came after newer technology enabled consumers to freely download music, films, and other kinds of art without attribution or payment to the original artist. The earlier copyright rules were deemed insufficient for granting proper protection to various categories of works. Additionally, the issue of cross-border protection has also gained a lot of relevance, and attempts have been made in order to ensure smooth procedures for the protection of copyrights across international borders. 

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Digital copies are identical to the original work, and copying such works is also easy and convenient while also ensuring that the quality of the original work is not diminished. Copyright owners’ right to commercially exploit their works can be violated by unauthorised downstream distribution if a system to protect their rights in digital works is not implemented. Owners of work should not make their intellectual property available on the internet if it is not protected, hence leaving these works unavailable to a large number of consumers or researchers. In the absence of major changes to our present distribution networks and copyright rules, some digital rights management is in the interests of both copyright owners and copyrighted information users. At last, the goal is to create an efficient management system. 

Congress’s objective in enacting the DMCA was to maintain a balance between the rights of copyright owners and the needs of consumers by examining each copyright violation. The DMCA was enacted to manage digital work available online and handle concerns regarding the same. The DMCA not only examines copyright infringement issues but also strengthens the penalties for copyright infringers.

The main functions of the DMCA are: 

  • Firstly, it criminalises the circumvention of the technological safeguards used by copyright holders to safeguard their works. Under the DMCA, it is unlawful to circumvent Digital Rights Management (DRM) systems or any other methods that regulate access to copyrighted information. This provision of the DMCA helps prevent unauthorised access to copyrighted material.
  • Secondly, safe harbours for Online Service Providers (OSPs) were established. OSPs are protected by safe harbours from being held personally accountable for copyright infringement committed by their users. OSPs must meet certain criteria in order to qualify for safe harbour protection, such as developing a notice and takedown mechanism and enacting a policy to terminate the accounts of frequent infringers. 
  • Thirdly, it protects the OSPs in specific conditions, for example, where their users infringe upon their copyright. The DMCA introduced the notice and takedown system, which allows copyright owners to inform OSPs about content infringing upon their copyright so that it can be deleted from the OSPs.
  • Fourthly, it encourages copyright holders to provide greater exposure to their works in digital formats by giving them legal protection against unauthorised access to such works (for example, password hacking or circumventing encryption). 
  • Lastly, the Act makes it illegal to disclose false copyright management details (for example, author and copyright owner names, work titles) or to remove or amend that sort of information in specific situations

However, practically, the effects of the DMCA were much wider, which enabled game developers, music and film studios, and others to keep strict monitoring of how their copyrighted works are used by customers. Sometimes they are prohibited from creating copies of the things they buy for themselves or from using cell phones and other gadgets in ways that the manufacturers deem objectionable.

Since the DMCA is enacted within the US legal system, it only applies to websites that are published in the United States. The DMCA applies to all websites based in the United States. Thus, even if the copyright owner is not situated in the United States, they will send a DMCA infringement warning if the server that hosts the website is based in the United States.

Furthermore, despite being based outside the United States, many hosting providers and corporations comply with their copyright rules and frequently sign DMCA takedown requests to avoid legal consequences in their home country. Furthermore, most sites located in World Intellectual Property Organisation (WIPO) member nations adhere to the Digital Rights Management (DRM) rules and respond to DMCA takedown notices. At present, around 200 member countries have ratified the WIPO treaty.

The DMCA was enacted to expand the existing laws by addressing issues related to the Internet and digital media. Through the DMCA, Congress also conformed to the requirements of the treaties and the law laid down by the WIPO, of which the US is a member.

The DMCA is divided into five parts with different titles attached to them, which are as follows:

Title I Implementation of treaties of the WIPO

This part of the DMCA amends the copyright laws in the US to include the various treaties of WIPO, mainly the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). WCT and WPPT added Chapter 12, to the US Copyright Act, which deals with copyright protection management systems. These treaties mostly dealt with the implementation of technological measures that help stop copyright infringement. Copyright infringement can be stopped by ideas that require member countries to provide protection to certain works from other member countries or created by nationals of other member countries. Secondly, it introduces anticircumvention laws, or laws that make it illegal to bypass any digital rights management software or software that protects copyrighted material.

Title II Limitations on the Liability of Online Service Providers

Under this part, the DMCA provides criteria that, if followed by the online service providers, will help them get protection from paying damages in a copyright infringement case

Title III Computer maintenance or repair

This part allows the owner, or someone who legally owns a copy of computer software, to reinstall it as part of regular computer repair or maintenance. In other words, it allows the owner of a copy of a programme to make reproductions or adaptations when necessary to use the programme in conjunction with a computer.

Title IV Miscellaneous provisions

This part includes a number of miscellaneous provisions.

Title V Protection of certain original designs

Title V adds a new chapter 13 to Title 17 of the United States Code and, along with it, creates a new system for protecting the original designs of certain useful articles that are aesthetic or very distinctive.

The DMCA’s Section 512 includes provisions for online service providers known as “safe harbours.” As long as you have an efficient “notice and takedown” mechanism, safe harbour rules can protect you from responsibility for any copyright infringements committed by your site’s users.

OSPs might face legal consequences if they post the creative work of others online without their consent. If proper “notice and takedown” procedures are implemented, then they can be used to defend against copyright infringement suits. 

Prior to the DMCA, online service providers who transmitted and stored content created by users were concerned about the potential legal consequences of hosting illegal material across or through their servers and platforms. To address these issues, the DMCA restricts online service providers’ (OSPs) responsibility for copyright infringement. Section 512 has four alternative safe harbours that restrict OSPs’ responsibility for infringing content that OSPs provide. 

  1. send, transmit, or link data through their systems; 
  2. temporarily cache or save on their servers; 
  3.  keep information on their servers at the request of their users, and 
  4. use information locating tools such as directories to link to or refer to the online location.

The safe harbour laws usually do not require OSPs to actively monitor their own networks for infringing objects. Section 512(c) Safe Harbour has risen in importance as internet platforms exist largely to include user-generated material (e.g., YouTube).

Each safe harbour provision has its own set of qualifying conditions; however, there are three that apply to all four safe harbours.

To begin, the company requesting protection under Section 512 must fit the statutory definition of “service provider,” which changes depending on whether a safe harbour provision is in effect. A service provider is defined in Section 512(c) as “a provider of online services or network access, or the operator of facilities therefor.” This term appears to be intentionally wide, and it is thought to include email services, hosting services, and internet access providers. This definition encompasses businesses that are not in the position of providing online services but execute such services accidentally (for example, a media corporation with a website that contains user comments).

Second, the OSP must “adopt and effectively implement a policy that allows for the removal of” users who are proven to be “repeat infringers” of copyrighted content in acceptable circumstances. The OSP must also advise users that it has a procedure in place for cancelling the accounts of repeat infringers. To meet this condition, the OSP’s approach to identifying and penalising repeat infringers is not required to be perfect. Cases such as Ventura Content, Ltd. v. Motherless, Inc. (2018) determine that the termination policy just has to be effective a fair percentage of the time. The decision of the court in this case also implies that the terms of the repeat infringement policy do not need to be written down, only that the site must notify subscribers of its policy in “appropriate circumstances.”

Third, the OSP must “accommodate” and not “interfere with standard technical measures” to prevent copyright infringement. “Standard technical measures” are those “used by copyright owners in order to recognise or protect copyrighted works” and “developed under a broad consensus of copyright owners and service providers.” These safeguards must be offered to everyone on “reasonable and non-discriminatory terms” and must not “impose significant expenses on service providers.” The United States Copyright Office disagreed with the provision’s usefulness, stating that there is presently nothing that qualifies as a “standard technical measure” because no measure with “broad consensus” has evolved through a “multi-industry process.”
So, in order to qualify for any of the four safe harbours, an OSP must, at a minimum,: 

  1. establish, fairly implement, and advise users and subscribers of a policy that provides for the removal from the platform or network of “repeat infringers;” and 
  2. setup its system or network to accept conventional copyright protection methods used to safeguard copyrighted content without interfering with it. 

OSPs that meet these threshold requirements may be eligible for each unique safe harbour protection under the conditions outlined below.

Safe harbours for storing or linking to infringing content

As previously stated, the DMCA provides one safe harbour for retaining infringing content at the request of a user and a second safe harbour for recommending or connecting users to a site hosting infringing materials. Under the following conditions, an OSP will be entitled to the safeguarding of one of these safe harbours.

  1. The OSP must have no real knowledge of the infringing nature of the item and cannot be aware of the “facts or situations from which the infringement is apparent.”  When the OSP gains “knowledge or awareness” of infringement, it must respond quickly to delete or limit access to such material.
  2. The OSP shall not “get financial advantages directly attributable to the infringing activity” in circumstances when the OSP “has the right and the capacity to control that activity.”  and
  3. When deleting or blocking infringing material, the OSP must follow the notice and take-down obligations outlined further in this article. 

System Caching Safe Harbour

To minimise an OSP’s responsibility for system caching, the DMCA creates a third safe harbour. Caching is a procedure in which an OSP creates a temporary duplicate of popular online information requested by a user in order for the OSP to provide that copy to subsequent users more quickly and effectively. Caching functions are performed by many OSPs. Under the following conditions, an OSP will be eligible for the caching safe harbour:

  1. The OSP must save the cached material using an “automatic technical process” in order to provide the material to future users who request access to the same.
  2. The OSP must deliver the cached item to future users without altering its content.
  3. The OSP must follow regulations about caching material updates “when specified by the individual making the content available online in line with a widely recognised industry accepted communications protocol.”
  4. The OSP may not interfere with technology that returns “hit” information to the individual who uploaded the content if it fits specified criteria. 
  5. The OSP shall restrict users’ access to the material in line with the access rules established by the person who uploaded the content (for example, password security).
  6. After being alerted that the material has been deleted or blocked at the original site, the OSP must remove or block any material that was placed without the permission of a copyright owner; and
  7. When deleting or blocking infringing material, the OSP must follow the notice and take-down obligations outlined further in this article.

Safe harbour for conduit service

The fourth safe harbour covers the transmission, routing, and transitory storing or copying of information, such as e-mail, when it moves from one point on a network to another at the request of someone else. This safe harbour essentially applies to OSPs whose only function in the intermediary transfer or storage of copyrighted content is as a passive conduit for the material. Under the following conditions, an OSP will be eligible for the conduit safe harbour.

  1. A person other than the OSP must begin the transmission of the content.
  2. The material must be sent, routed, and stored using an “automatic technical procedure without selection of the content by the OSP.”
  3. The OSP shall refrain from selecting who receives the content. 
  4. The OSP shall not make any copy of the content normally available to anyone other than the intended receivers and must not maintain any copy for any longer than is reasonably required for the OSP’s transmission, routing, or connection; and
  5. The material must be sent without modification by the OSP.

The process of Notice and Takedown under DMCA

When an OSP receives notification of infringing content on its platform, it initiates legally mandated steps known as the notice and takedown process. To begin, the OSP must “expeditiously remove or disable access to” the allegedly infringing material. The OSP must next take “reasonable steps” to notify the person who posted the infringing content that it has been removed. If the original uploader replies by giving the OSP a counter-notification indicating that the content was not infringing, the OSP is required to restore the deleted content within ten to fourteen business days. If the person who issued the takedown notice files a case against the original uploader within fourteen days of receiving the OSP’s notice of restoration and informs the OSP of the ongoing disputes, the OSP is not compelled to restore the removed content. 

If an OSP fails to follow the aforementioned protocol, it may be held accountable for infringement. In addition, Section 512 establishes a cause of action against “any person who knowingly materially misrepresents” content as infringing in a takedown notice. Before a takedown notice is sent, the major defences against copyrighted infringement, such as fair use, must be examined by the author or owner of the copyright.

The DMCA’s Section 1201 adds three additional tort liabilities. Torts are civil wrongs, but there are serious punishments attached to them in a few cases, such as monetary damages and fines. The most contentious of the three new tortious liabilities, Section 1201(a)(1)(A) makes it unlawful to evade a technical instrument that effectively limits access to a protected work. Trafficking in devices principally designed to evade a TPM that effectively limits access to protected work is prohibited under Section 1201(a)(2). Section 1201(b) makes it illegal to trade in devices that are principally designed to circumvent a TPM that effectively protects a copyright owner’s rights. 

The anti-circumvention rules are enforced by Section 1203, which establishes an express cause of action in federal court for any individual “injured by a violation” of Section 1201. The aggrieved party may choose to get statutory damages or the sum of the actual losses it experienced plus the additional profits earned by the offender. In addition, Section 1204 provides criminal penalties of up to a $500,000 fine and five years in jail for every Section 1201 infringement; the punishment is doubled for a second violation.

The anti-circumvention rule, which was outlined in Section 1201, is described by copyright experts as a “paradigm shift” away from a three-century-old focus on the conduct of people who create unauthorised copies. The old system is being replaced by a new emphasis on accountability for those who offer the technology for circumventing TPMs, thereby enabling unauthorised copying by people.

There are three key distinctions to remember between the three liabilities. The first two deal with access to a work that is copyrighted, while the third is concerned with safeguarding a copyright owner’s rights (usually, the exclusive right to manufacture copies). These tortious liabilities generally deal with the trafficking of anti-circumvention devices (usually done by businesses) and the actual act of circumventing (done by people or institutions). 

Section 1201 enforces liability on third parties that provide anticircumvention devices that allow access or copying, whereas the person who is the circumventor only becomes liable under this section for gaining access because she/he is already responsible for infringement of copyright under Section 106 of the Copyright Act.

Exceptions for Specific Classes of Works

Section 1201(a)(c) establishes a method through which the Copyright Office releases a list of classes of works for which the Section 1201 restriction would be damaging to non-infringing uses every three years. Users can get around TPMs to access these works. 

Section 1201(d)(1) allows “Libraries, Archives, and Educational Institutions” to bypass a TPM to get access to a work only for the purpose of making a “good faith determination of whether to acquire a copy.” They must not keep access for any longer than is required to reach their determination, and they must not use such access for any other reason. Section 1201(d)(2) restricts the exemption to circumstances in which the work is not generally available in another form. Section 1201(d)(5) necessitates an institution being open to the public or making themselves available to non-affiliated researchers. Sections 1201(e), (f), and (g) grant limited exemptions to law enforcement and other government entities, as well as to reverse engineering and encryption research. 

Section 1201 fails to recognise non-infringing use as a defence

Section 1201 of the DMCA has been criticised even before it was enacted. One of the most common criticisms is that it blocks access without discriminating between non-infringing and infringing applications. There are several exceptions to the usage of copyrighted material under the Copyright Act. Two of the most important are specified in Section 107, Fair Use, and Section 109(a), First Sale. According to the First Sale doctrine, the copyright owner has the exclusive right to make the first sale of each copy of his or her work, although those works may be sold by their owners without being notified by the copyright owner. When a TPM controls access to digital works, the owner is often unable to successfully market the work.

Fair use was initially a judicially established law that didn’t get codified until 1976 when the Copyright Act effectively embraced the criteria established by judges. Section 107 of the Copyright Act offers a list of legitimate reasons for copying. Although the list is not exhaustive, it covers criticism, commentary, news reporting, teaching, scholarship, and research. Section 107 outlines four elements to examine when assessing whether a certain usage is “fair.” 

  • the nature and purpose of the usage, particularly whether it is commercial or for nonprofit educational reasons; 
  • the nature of the work protected by copyright; 
  • extent and significance of the portion used with regard to the entire copyrighted work; and
  • the effect of the usage on the prospective market for the value of the copyrighted work.

Fair use, as codified, is a defence against copyright infringement rather than an absolute right to the intellectual property of the consumer. As a result, whether a use is “fair use” can only be evaluated after the fact by a judge or jury. A library or library user cannot foresee whether or not fair usage will protect them from liability. Furthermore, as previously stated, fair use is not a valid defence to Section 1201 infringements. This results in a situation in which a user can make fair use of content if it is accessible in print or a digital copy without TPMs but cannot make fair use of the same content if it is accessed in a digital copy with TPMs.

As more content is created and transmitted digitally nowadays, the future capacity to make valid, fair uses of these works is dependent on the availability of methods to circumvent these digital security mechanisms.

The DMCA’s anti-circumvention laws, however, forbid the distribution and production of such tools. Still, some use such tools to encourage piracy. Hence, the conventional approach to copyright infringement has been legal prosecution, not a blanket prohibition on technologies that may possibly allow fair use. Sadly, several fair-use tools have already been taken off the market. 

In Universal City Studios, Inc. v. Reimerdes (2001), eight major motion picture companies filed a DMCA suit against multiple defendants, including Eric Coley, who published a magazine and maintained an affiliated website, seeking to prevent the defendants from publishing links to a software program that bypassed DVD encryption. The website, which was not engaged in the program’s development, made the software tool available throughout its continued coverage of the magazine, from publication or even linking to the code, and the DMCA issue was upheld by the Second Circuit Court of Appeals. The district court permanently prohibited the magazine from doing such things.

Despite the Reimerdes ruling, there are several suitable justifications for duplicating DVDs. Many legitimate applications become feasible after the video is copied to a personal computer.  However, without the equipment required to replicate DVDs, these fair uses are rendered impossible. It is obvious that DRM technologies, backed by the DMCA’s authority, constitute a severe potential danger to fair use. While technical improvements may address or mitigate some of the social costs associated with the erosion of fair use, they are unlikely to completely resolve the problem. The problem becomes one of trade-offs rather than reconciliation. Congress, by passing the DMCA, effectively outsourced copyright law for digital material to copyright owners and DRM suppliers. Such a system is unlikely to create positive outcomes for the public.

The DMCA’s Section 1201 is also being used to hinder genuine scientific studies and research. Ironically, computer security research is a significant area where the DMCA has the most complicated influence. In response to technologists’ worries that earlier drafts of the DMCA would have prohibited the essential research and testing required to produce computer security solutions, Congress established two restricted exclusions in the DMCA for encryption research and security testing. 

However, these exclusions are too narrow: computer scientists become involved in litigation while attempting to comply with the DMCA. As a result of these changes, all computer users’ security will be harmed, as security researchers will avoid valuable work that may infringe the DMCA. It may compel many researchers to reconsider publishing their findings. Such limitations might harm the computer security business in the US and hence the world by discouraging foreign researchers from publishing and attending conferences for fear of being punished under the DMCA. Many researchers will refuse to reveal specific information about a flaw in computer security or any other subject for fear of being prosecuted under the DMCA. When copyright holders are permitted to use the DMCA as a barrier to limit free speech and the free flow of ideas, then it seriously challenges the boundaries of constitutionality. This is especially true in the computer security business, which might profit greatly if the DMCA’s anti-circumvention rules were simpler and enabled researchers to benefit from the work of others while at the same time protecting the work. 

In 2001, the FBI detained Russian programmer Dmitry Sklyarov at the Def Con hacker conference in Las Vegas after he delivered a presentation about circumventing the encryption algorithm used by Adobe for electronic books printed using Adobe Acrobat. Customers were unable to make copies of their books to read on various systems due to encryption, so Sklyarov created a program that circumvented this restriction and distributed a trial version at the conference along with information on how to purchase the complete product. Adobe wanted the FBI to intervene, but it had to drop its complaint after the security community protested.

When determining accountability for copyright violations, DMC distinguishes between analogue and digital broadcasters. Section 1201(k) establishes accountability where content broadcast through an analogue means infringes on copyrights. VHS players, cassettes, CDs, and other analogue devices are examples. The Act reflects the economic and technological difficulties that analogue broadcasters have encountered as a result of the development of digital broadcasters. As a result, if an analogue broadcaster did not intend to breach copyrights, the DMCA exempts them from responsibility.

The Act exempts digital broadcasters, including intermediaries and OSPs, in the following circumstances:

  • third-party networks hosting copyrighted content,
  • when a broadcaster has no involvement in the transmission,
  • The transmitted content was not altered by a broadcaster, and
  • The content in question was not retained or copied by the broadcaster.

Search engines such as Google, Yahoo, and Bing assist us in finding the information we want. In some circumstances, the DMCA protects search engines since they are considered online service providers (OSPs). Title II of the DMCA, sometimes known as the Online Copyright Infringement Liability Limitation Act, offers a safe harbour for OSPs. Title II amends the Copyright Act by adding a new section addressing the liability of OSPs. It divides OSPs into four categories: system caching, information locating tools, information storage on systems or networks at the request of users, and transitory communications.

To claim relief from copyright infringement liability, OSPs must follow the safe harbour principles. The guidelines are as follows:

  • Not profiting from the distribution of copyrighted material,
  • They remove the disputed content when it is brought or comes to their knowledge, and when they do so, they notify the copyright holders of the removal.

Twitch has had to deal with the harsh reality of DMCA enforcement as well as the delicate balancing act of creating and regulating content on live streaming. YouTube experienced the same issue in 2015, and it still does today. Following a review of Twitch’s history of VODs and clips, the Recording Industry Association of America (RIAA), which represents 85 percent of all music firms, issued an extensive number of “takedown notices.”

To that end, the use of three songs in streams between 2017 and 2019 was the subject of these notifications, resulting from Twitch’s compelled compliance with DMCA safe harbour security criteria. Twitch has now found a compromise between copyright holders’ interests and the popularity of the platform’s streamers.

Similarly, Twitch’s “three strikes” policy penalises streamers for the same thing that happened years ago, with no chance to correct the issue. Twitch has stated that it would work with the organisation to strengthen content control options, but the damage has already been done for many. In contrast, YouTube has made substantial changes regarding how it governs copyrighted content and handles “takedown notifications,” resulting in near-universal criticism from YouTube content creators. The enormous volume of videos on Twitch implies that similar to YouTube, monitoring, warnings, and compliance are all handled by mass computer-based analysis.

This method, however, left producers and streamers without answers, as they relied on faulty appeal mechanisms and manual re-review to have their movies monetized, avoid punishment, or have their recordings restored on the platform.

Although YouTube and Twitch are both struggling with similar challenges, their responses differ significantly. Any third party who discovers copyrighted content on Twitch will inform Twitch. Twitch either removes the material or mutes it, and the streamer is warned for breaking the DMCA Guidelines and terms of service. YouTube, on the other hand, has established a framework via which content owners may respond to and challenge these demands, as well as address issues before their YouTube channel gets suspended or banned.

India’s adoption of DMCA-type rules has been slower and less extensive. Indeed, neither the WCT nor the WIPO Performances and Phonograms Treaty have been signed by India. However, India is still considering implementing DMCA-type rules. As a result, India may continue to change its copyright laws to include further DMCA-like measures. Creators of expressive works are granted a set of exclusive rights to their work under copyright law. The primary goal of copyright law is to promote the creation and transmission of information and learning by incentivizing the development of new works. Dramatic works; literary works (including computer code); architectural works; choreographic works; pictorial, graphic, and sculptural works; musical works; audiovisual works (movies and television); and sound recordings are all protected by copyright. 

Copyright holders have the exclusive right to create derivative works of their works, as well as reproduce, circulate, and publicly display or perform them. The copyright term lasts for the author’s lifetime plus sixty years. Fair use, a judicially constructed theory that allows some socially significant uses (e.g., quotes for literary criticism) depending on four elements, is an essential restraint on these rights. 

  1. the purpose and nature of the use; 
  2. the underlying copyrighted work’s nature; 
  3. the extent and significance of the copyrighted work obtained; and 
  4. the impact of the usage on the market for the copyrighted work.  

To enforce their rights, copyright holders can sue alleged infringers—those who create unauthorised derivative works or duplicate, distribute, or perform the original work without permission.

Currently, Section 52(1) of the Indian Copyright Act of 1957 has various clauses that particularly limit copyright owners’ rights with respect to the use of computer programs, the creation of backup copies, interoperability between computer programs, and reverse engineering. The Indian Copyright Act was revised in India to include computer programs as ‘literary works’. The act of acknowledging that electronic documents are equivalent to written ones helps protect copyright on electronic documents. Because many of the concepts that applied to copyright in print are no longer important in the digital age, the extension of copyright law to the internet often results in complex interpretations that create barriers to technological development in the United States and other nations where a specific law such as the DMCA has been implemented, but India does not have any special law for copyright protection on electronic documents.

Many of these copyright-related issues are now being ignored by Indian publishers, owing to a lack of legal understanding. Five of the world’s largest publishers have launched a complaint against Google, protesting internet searches for numerous classic books. According to the charges, Google has violated the publishers’ copyright. It makes all scanned books available on its website without the authorization of authorised individuals (for the comments and summary). The use of some parts of books is legitimate, but it is not suitable to make all the books available on the Internet. According to Shroeder, head of the Association of American Publishers, “If it continues, any person will begin preparing a digital duplicate of any book by going to the library”, which is a bitter truth and a regular sight nowadays.

After the DMCA was enacted in 1998, it was criticised for various reasons. The following are some of the most common criticisms of the DMCA:

Inadequate balance of copyright protection and fair use

The most common criticism of the DMCA is that it is heavily biased towards the rights of copyright holders at the cost of the fair use rights of the users of the copyrighted content. It is always a point of criticism for the DMCA that the provisions that deal with the anti-circumvention of copyrighted material under the DMCA are so wide that they are used to discourage legal and fair uses of copyrighted content.

Anti-circumvention measures that are too comprehensive

The anti-circumvention clauses of the DMCA ban the circumvention of technical safeguards intended to protect copyrighted works. However, because these prohibitions are so broad, they can be applied to a wide range of acts that have nothing to do with violations of intellectual property. The DMCA, for example, has been used to restrict users from mending their own equipment or researchers from researching the security of software systems.

Impact on inventiveness and creative thinking

The DMCA has played a major role in hindering people’s ability to innovate and have creative thinking by placing barriers and making it more difficult for people and innovators to develop new things. The anti-circumvention rules of the DMCA are used to restrict people from taking ideas and using them to enhance technology, as well as to restrict and put a barrier on entrepreneurs from developing new products as they can be seen as an infringement on the copyrighted works of others.

Since 1998, technological innovation has grown in significance, complexity, and variety at an exponential rate. As a result, a number of nations have changed or added to their legal systems laws associated with digital media, technology, and related issues in the time since the United States enacted the Digital Millennium Copyright Act (DMCA) as to how the United States regulates copyright and related issues associated with the facets enumerated in that Act. While many concerns are to be resolved before there is a feeling of harmony or a universal approach to the usage of copyright laws in this day and age, similarities in methods are evident. In the majority of situations, copyright businesses have developed and thrived in the marketplace. When copyright businesses have been unable to adjust, Congress has stepped in with compulsory licencing. What Congress has done is limit innovation in the name of copyright. When asked to depart from copyright standards, policymakers should exercise caution. Copyright protection can only be effective if a harmonious relationship between owners and consumers continues to exist. The Digital Millennium Copyright Act undermines that balance by giving the copyright owner far too much authority. The Act contains several constitutional defects and has left much of the old body of copyright law outdated. So, lastly, it can be said that although the DMCA has been helpful in safeguarding copyright owners’ rights, there are real worries about its reach and effects on user rights. Reforms to the DMCA, such as clarifying and reinforcing the safe harbour provisions, as well as addressing the issue of automatic takedown notices, might help address these concerns. Alternatives to the DMCA, such as a “notice and takedown” framework or a “digital first sale doctrine,” provide potential remedies to these problems but must be carefully weighed with the interests of all parties.

What is a DMCA takedown notice?

A DMCA takedown notice is a complaint made if someone suspects a website of copyright infringement.

Does DMCA notice apply to other Intellectual properties?

The DMCA safe-harbour provisions only apply to copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims for use of trade secrets.

What should an individual do if served with a DMCA notice?

The person should reply as soon as possible, or they can even serve a counter-notice.



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