The Digital Millennium Copyright Act Enters a New Era

In 1998, at the dawn of the user-generated web, Congress enacted the Digital Millennium Copyright Act (DMCA), a piece of legislation that is essential to how we experience and use the web today. YouTube’s famous copyright strike system, for example, exists because of the DMCA. One part of this law directs the United States Copyright Office to determine every three years if there should be exemptions to the DMCA’s "anticircumvention" provisions. 2024 is the 9th rulemaking year, and the agency recently issued its latest exemptions, many of which impact the work we do at Penn and in the Penn Libraries.

The DCMA

Congress passed the Digital Millennium Copyright Act in response to changes in how people in the late 1990s were using copyrighted works in the digital space. First, the DMCA created "safe harbors" for some providers of internet services in 17 USC 512. At the time in the 1990s, most websites were designed to be read by users and did not allow the kind of interaction with other users or with the websites themselves as is common today. Users could only consume information from these websites and not upload or otherwise add their own content to them. That said, a growing number of websites were developing ways to host user-generated content. Copyright poses a problem for websites and other online services that host or process user-generated content because if a user uploads something that infringes on another person’s copyright, those websites and services could be liable for it. The DMCA addressed this problem by creating "safe harbor" provisions that protect providers of internet services that deal with user-generated content from copyright infringement lawsuits, as long as they follow some statutory requirements.  

Second, the DCMA added the anticircumvention provisions in 17 USC 1201 as well as the other provisions of 1202-1205 to give some additional protections to digital content. People in the late 1990s were increasingly creating and distributing copyrighted works in digital formats instead of or in addition to analog formats. This was the heyday of the compact disc, after all. This growing proliferation of digital works raised concerns about how rightsholders could adequately protect those works from misuse, since it was so easy to copy them. In response to this concern, the World Intellectual Property Organization required member states, including the United States, to adopt legislation to prevent the circumvention of technical measures used to protect digital content. The DMCA did this. 17 USC 1201’s anticircumvention provisions prohibit users of digital works from breaking or otherwise avoiding technical protective measures like digital rights management software that prevent copying of those works. Meanwhile, 1202 prohibits users from removing copyright management information to facilitate infringement. 1203 and 1204 create causes of action to enforce 1201-1202. 1205 holds that the law does not interfere with state or federal privacy protections.  

Focusing on the anticircumvention provisions of the DMCA, Congress also recognized that these provisions could unintentionally interfere with beneficial uses of works that copyright law wants to foster and support. For example, if a user copies a video clip from a streaming service that does not natively allow copying/sharing in order to create a video essay critiquing the clip, this act could violate 1201 even if the use in that video essay would constitute fair use. So Congress built into the law a "fail-safe mechanism." 1201 requires the Librarian of Congress, in consultation with the Register of Copyrights, to adopt exceptions to the anticircumvention provisions every three years if users’ ability to make noninfringing uses of works would be hurt without those exemptions.

To do this, the Copyright Office solicits public comments on what should or should not be exempted from coverage. It reviews those comments and sends its recommendations to the Librarian of Congress. The Librarian of Congress then issues a regulation based on those recommendations. None of these exemptions are permanent; they can change from period to period, depending on the comments from the public. That said, the Copyright Office often recommends renewing previous exemptions, as long as the public continues to advocate for them.  

The Copyright Office started its 9th rulemaking process last year, and it just finished, publishing the final rule in the Federal Register on October 28, 2024.

Exemptions for academic and research uses of digital works

Many of the exemptions to 1201 enable educational or research uses that require circumventing technical protective measures on digital works. For example, one exemption enables users to use short portions of movies for classwork in something like a film studies class. Another exemption enables some text and data mining for research purposes. A third exemption allows museums and archives to preserve video games where such preservation would be impossible or impractical if those museums and archives could not circumvent the digital rights management software on those games.  

Indeed, the Copyright Office adopted many exemptions in this year’s rulemaking that benefit education and research. Most of these exemptions are not new; many of them were renewed  from the previous period, and other previous exemptions were expanded upon. Here is a list of those exemptions:

• Several exemptions allow some educational and derivative uses of audiovisual works, including:
  • The use of portions of motion pictures in nonfiction multimedia e-books to support commentary and criticism of those works.
  • The use of excerpts of motion pictures by educational institutions to support class presentations and coursework like video essays or multimedia criticism.
  • The use of motion pictures for educational purposes in Massive Open Online Courses (MOOCs).
  • The use of motion pictures for educational purposes in nonprofit digital and media literacy programs offered by libraries and other memory institutions.
• An exemption enables captioning or audio descriptions for motion pictures by educational institutions.
• An exemption allows for preservation or replacement copies of motion pictures by libraries, archives, and museums.
• Two exemptions allow for text and data mining of audiovisual works and literary for scholarly research and teaching. The Copyright Office expanded these exemptions to permit collaboration across educational institutions.  
• An exemption allows for assistive technologies for literary works.
• An exemption enables the preservation of video games by libraries, archives, or museums. Importantly, the Copyright Office declined to expand this exemption to remove its single user limitation.

The DMCA and the importance of advocating for user rights

The Copyright Office did not renew a previously-existing exemption that allowed individuals with disabilities to use alternative input devices for video games, but this provides for us an important lesson. The agency wrote that it did not renew this exemption because it did not receive any requests from the public to do so. Accordingly, the agency believed that it could not recommend the exemption for renewal due to the constraints of the rulemaking process.  

This is a valuable reminder that we must continue to actively advocate for the rights of users of copyrighted works. Copyright law has many "escape valves" -- like fair use and the first sale doctrine -- that prevent rightsholder rights from encroaching on uses that the law was to support by giving special rights to users. The DMCA anticircumvention exemptions are one example, but they are not the only one. Indeed, the fundamental purpose of copyright law itself is to benefit the public. The intellectual property clause of the Constitution holds that Congress can create copyrights and patents "To promote the Progress of Science and useful Arts" and that copyrights and patents can only last "for limited Times," ensuring that the artistic works and inventions fostered by copyright and patent law should ultimately grow our culture and build the public domain -- at least eventually.

However, user rights do not always happen on their own, and the DMCA exemptions are a fitting example of this. We only get these exemptions if we argue for them, and we need to do that at least every three years, or we lose them. Indeed, many – perhaps all – of them should be permanent parts of copyright law anyway. But if the government will not act on its own to protect users, we need to work to ensure that users have the rights they need to use and build on copyrighted works when appropriate.