Digital Millennium Copyright Act: Can It Take Down Internet Infringers?

Authors

• David L. Clark

Abstract

In response to the growing digital age, Congress enacted the Digital Millennium Copyright Act ("DMCA") on October 28, 1998. Unlike traditional copyright statutes, the DMCA does not address the act of infringement but instead focuses on the technology that makes infringement easier. Copyright holders have begun to develop encryption technology to prevent unauthorized use of their works, and the DMCA assists those efforts by prohibiting any person from circumventing those security provisions or selling decryption devices. The DMCA also encourages Internet Service Providers ("ISPs") to disable websites that are accused of copyright infringement; it protects the ISPs with a safe harbor against claims of copyright infringement if they voluntarily take down offending content.

In theory, the DMCA changes neither the traditional protections granted by a copyright nor the traditional defenses to claims of infringement - it is instead aimed at technological methods for enforcing copyrights in the digital age. In practice, however, the DMCA has the potential to upset the balance between protection for copyright owners and the overall benefits of public use of copyright protected material. The safeguards provided by the new encryption technologies may protect artistic works more broadly than does copyright law, and the prohibition against circumvention prevents what would otherwise be authorized uses of the works.

This article examines the consequences of the DMCA's protection of copyrighted works on the Internet. Section II examines the policy trade-offs involved in traditional copyright law. It then examines the kinds of infringement permitted by the Internet and the kinds of protection permitted by encryption technology. Section III analyzes the DMCA and its potential impact in more detail and describes the few existing cases decided under the DMCA. Section IV considers the DMCA's probable impact on the balance of interests inherent in copyright law. Section V concludes by raising concerns about the effect of the DMCA and questioning whether it will prove successful in providing an adequate remedy for copyright holders or in protecting the public interest in access to artistic works.

Recommended Citation

David L. Clark, Digital Millennium Copyright Act: Can It Take Down Internet Infringers?, 6 Computer L. Rev. & Tech. J. 193 (2002)