DMCA information

Billahome Corp Digital Millennium Copyright Act Notice

Claims of Copyright Infringement & Related Issues (17 USC § 512 et seq.)

We are seriously respecting and regarding the intellectual property rights of others.

Any individual who believes their work has been recreated or reproduced in a manner that constitutes copyright infringement may notify us to our agent by providing the following information:

 a. Identification of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the site;

b. Identification of the material that you claim is infringing and needs to be removed, including a description of where it is located so that the copyright agent can locate it;

c. Your address, telephone number, and, if available, e-mail address, so that the copyright agent may contact you about your complaint; and

d. A signed statement that the above information is accurate; that you have a good faith belief that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner’s behalf in this situation.

Upon obtaining such knowledge we will act expeditiously to remove, or disable access to, the material. Please be aware that there are substantial penalties for false claims.

If a notice of copyright infringement has been wrongly filed against you, you may submit a counter notification to our agent. A valid counter notification is a written communication that incorporates the following elements:

  1. A physical or electronic signature of the poster;
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

c. A statement under penalty of perjury that you have a good faith belief that the material was                       removed or disabled as a result of mistake or misidentification;

  • Your name, address, and telephone number; a statement that you consent to the jurisdiction of federal district court for the judicial district in which your address is located, or if your address is outside of the U.S., for any judicial district in which the service provider may be found; and that you will accept service of process from the complainant.

Notices of the foregoing copyright issues should be sent as follows:

Note – members and subscribers must insert their own applicable contact information below.

By mail:

Billahome Corp

33530 1st Way  South #102

Federal Way WA 98003

United States

Attention: DMCA Designated Agent

By e-mail:

 In the event that you giving us notice of copyright infringement by e-mail, an agent may begin investigating the alleged copyright infringement; however, we must receive your signed statement by mail or as an attachment to your e-mail before we are required to take any action.

This information should not be construed as legal advice. We recommend you seek independent legal counsel before filing a notification or counter-notification.


U.S. Copyright Office Summary

December 1998


The Digital Millennium Copyright Act (DMCA)1 was signed into law by

President Clinton on October 28, 1998. The legislation implements two 1996 World

Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and

the WIPO Performances and Phonograms Treaty. The DMCA also addresses a

number of other significant copyright-related issues.

The DMCA is divided into five titles:

  • Title I, the “WIPO Copyright and Performances and Phonograms

Treaties Implementation Act of 1998,” implements the WIPO


  • Title II, the “Online Copyright Infringement Liability Limitation

Act,” creates limitations on the liability of online service providers for

copyright infringement when engaging in certain types of activities.

  • Title III, the “Computer Maintenance Competition Assurance

Act,” creates an exemption for making a copy of a computer program

by activating a computer for purposes of maintenance or repair.

  • Title IV contains six miscellaneous provisions, relating to the

functions of the Copyright Office, distance education, the exceptions

in the Copyright Act for libraries and for making ephemeral recordings,

“webcasting” of sound recordings on the Internet, and the applicability

of collective bargaining agreement obligations in the case of transfers

of rights in motion pictures.

  • Title V, the “Vessel Hull Design Protection Act,” creates a new form

of protection for the design of vessel hulls.

This memorandum summarizes briefly each title of the DMCA. It provides

merely an overview of the law’s provisions; for purposes of length and readability a

significant amount of detail has been omitted.

A complete understanding of any provision of the DMCA requires reference to the text of the legislation itself.


Title I implements the WIPO treaties. First, it makes certain technical

amendments to U.S. law, in order to provide appropriate references and links to the

treaties. Second, it creates two new prohibitions in Title 17 of the U.S. Code—one on

circumvention of technological measures used by copyright owners to protect their

works and one on tampering with copyright management information—and adds civil

remedies and criminal penalties for violating the prohibitions. In addition, Title I

requires the U.S. Copyright Office to perform two joint studies with the National

Telecommunications and Information Administration of the Department of

Commerce (NTIA).

Technical Amendments

National Eligibility

The WIPO Copyright Treaty (WCT) and the WIPO Performances and

Phonograms Treaty (WPPT) each require member countries to provide protection to

certain works from other member countries or created by nationals of other member

countries. That protection must be no less favorable than that accorded to domestic


Section 104 of the Copyright Act establishes the conditions of eligibility for

protection under U.S. law for works from other countries. Section 102(b) of the

DMCA amends section 104 of the Copyright Act and adds new definitions to section

101 of the Copyright Act in order to extend the protection of U.S. law to those works

required to be protected under the WCT and the WPPT.

Restoration of Copyright Protection

Both treaties require parties to protect preexisting works from other member

countries that have not fallen into the public domain in the country of origin through

the expiry of the term of protection. A similar obligation is contained in both the

Berne Convention and the TRIPS Agreement. In 1995 this obligation was implemented

in the Uruguay Round Agreements Act, creating a new section 104A in the

Copyright Act to restore protection to works from Berne or WTO member countries

that are still protected in the country of origin, but fell into the public domain in the

United States in the past because of a failure to comply with formalities that then

existed in U.S. law, or due to a lack of treaty relations. Section 102(c) of the DMCA

amends section 104A to restore copyright protection in the same circumstances to

works from WCT and WPPT member countries


Registration as a Prerequisite to Suit

The remaining technical amendment relates to the prohibition in both treaties

against conditioning the exercise or enjoyment of rights on the fulfillment of

formalities. Section 411(a) of the Copyright Act requires claims to copyright to be

registered with the Copyright Office before a lawsuit can be initiated by the copyright

owner, but exempts many foreign works in order to comply with existing treaty

obligations under the Berne Convention. Section 102(d) of the DMCA amends section

411(a) by broadening the exemption to cover all foreign works.

Technological Protection and Copyright Management Systems

Each of the WIPO treaties contains virtually identical language obligating

member states to prevent circumvention of technological measures used to protect

copyrighted works, and to prevent tampering with the integrity of copyright

management information. These obligations serve as technological adjuncts to the

exclusive rights granted by copyright law. They provide legal protection that the

international copyright community deemed critical to the safe and efficient exploitation

of works on digital networks.

Circumvention of Technological Protection Measures

General approach

Article 11 of the WCT states:

Contracting Parties shall provide adequate legal protection

and effective legal remedies against the circumvention

of effective technological measures that are used

by authors in connection with the exercise of their

rights under this Treaty or the Berne Convention and

that restrict acts, in respect of their works, which are

not authorized by the authors concerned or permitted

by law.

Article 18 of the WPPT contains nearly identical language.

Section 103 of the DMCA adds a new chapter 12 to Title 17 of the U.S. Code.

New section 1201 implements the obligation to provide adequate and effective

protection against circumvention of technological measures used by copyright owners

to protect their works.

Section 1201 divides technological measures into two categories: measures that

prevent unauthorized access to a copyrighted work and measures that prevent

2“Copying” is used in this context as a short-hand for the exercise of any of the exclusive

rights of an author under section 106 of the Copyright Act. Consequently, a technological

measure that prevents unauthorized distribution or public performance of a work would fall

in this second category.

unauthorized copying2 of a copyrighted work. Making or selling devices or services that

are used to circumvent either category of technological measure is prohibited in certain

circumstances, described below. As to the act of circumvention in itself, the provision

prohibits circumventing the first category of technological measures, but not the


This distinction was employed to assure that the public will have the continued

ability to make fair use of copyrighted works. Since copying of a work may be a fair use

under appropriate circumstances, section 1201 does not prohibit the act of circumventing

a technological measure that prevents copying. By contrast, since the fair use

doctrine is not a defense to the act of gaining unauthorized access to a work, the act of

circumventing a technological measure in order to gain access is prohibited.

Section 1201 proscribes devices or services that fall within any one of the

following three categories:

  • they are primarily designed or produced to circumvent;
  • they have only limited commercially significant purpose or use other

than to circumvent; or

  • they are marketed for use in circumventing.

No mandate

Section 1201 contains language clarifying that the prohibition on circumvention

devices does not require manufacturers of consumer electronics, telecommunications

or computing equipment to design their products affirmatively to respond to any

particular technological measure. (Section 1201(c)(3)). Despite this general ‘no

mandate’ rule, section 1201(k) does mandate an affirmative response for one particular

type of technology: within 18 months of enactment, all analog videocassette recorders

must be designed to conform to certain defined technologies, commonly known as

Macrovision, currently in use for preventing unauthorized copying of analog

videocassettes and certain analog signals. The provision prohibits rightholders from

applying these specified technologies to free television and basic and extended basic tier

cable broadcasts.

Savings clauses

Section 1201 contains two general savings clauses. First, section 1201(c)(1)

states that nothing in section 1201 affects rights, remedies, limitations or defenses to

copyright infringement, including fair use. Second, section 1201(c)(2) states that

nothing in section 1201 enlarges or diminishes vicarious or contributory copyright



Finally, the prohibitions contained in section 1201 are subject to a number of

exceptions. One is an exception to the operation of the entire section, for law

enforcement, intelligence and other governmental activities. (Section 1201(e)). The

others relate to section 1201(a), the provision dealing with the category of technological

measures that control access to works.

The broadest of these exceptions, section 1201(a)(1)(B)-(E), establishes an

ongoing administrative rule-making proceeding to evaluate the impact of the

prohibition against the act of circumventing such access-control measures. This

conduct prohibition does not take effect for two years. Once it does, it is subject to

an exception for users of a work which is in a particular class of works if they are or are

likely to be adversely affected by virtue of the prohibition in making noninfringing uses.

The applicability of the exemption is determined through a periodic rulemaking by the

Librarian of Congress, on the recommendation of the Register of Copyrights, who is

to consult with the Assistant Secretary of Commerce for Communications and


The six additional exceptions are as follows:

1. Nonprofit library, archive and educational institution exception

(section 1201(d)). The prohibition on the act of circumvention of

access control measures is subject to an exception that permits

nonprofit libraries, archives and educational institutions to circumvent

solely for the purpose of making a good faith determination as to

whether they wish to obtain authorized access to the work.

2. Reverse engineering (section 1201(f)). This exception permits

circumvention, and the development of technological means for such

circumvention, by a person who has lawfully obtained a right to use a

copy of a computer program for the sole purpose of identifying and

analyzing elements of the program necessary to achieve interoperability

with other programs, to the extent that such acts are permitted under

copyright law.

3. Encryption research (section 1201(g)). An exception for encryption

research permits circumvention of access control measures, and the

The Digital Millennium Copyright Act of 1998

Copyright Office Summary December 1998 Page 6

development of the technological means to do so, in order to identify

flaws and vulnerabilities of encryption technologies.

4. Protection of minors (section 1201(h)). This exception allows a court

applying the prohibition to a component or part to consider the

necessity for its incorporation in technology that prevents access of

minors to material on the Internet.

5. Personal privacy (section 1201(i)). This exception permits circumvention

when the technological measure, or the work it protects, is capable

of collecting or disseminating personally identifying information about

the online activities of a natural person.

6. Security testing (section 1201(j)). This exception permits circumvention

of access control measures, and the development of technological

means for such circumvention, for the purpose of testing the security

of a computer, computer system or computer network, with the

authorization of its owner or operator.

Each of the exceptions has its own set of conditions on its applicability, which

are beyond the scope of this summary.

Integrity of Copyright Management Information

Article 12 of the WCT provides in relevant part:

Contracting Parties shall provide adequate and effective

legal remedies against any person knowingly performing

any of the following acts knowing, or with respect to

civil remedies having reasonable grounds to know, that

it will induce, enable, facilitate or conceal an infringement

of any right covered by this Treaty or the Berne


(i) to remove or alter any electronic rights

management information without authority;

(ii) to distribute, import for distribution, broadcast

or communicate to the public, without authority,

works or copies of works knowing that electronic rights

management information has been removed or altered

without authority.

Article 19 of the WPPT contains nearly identical language.

New section 1202 is the provision implementing this obligation to protect the

integrity of copyright management information (CMI). The scope of the protection

is set out in two separate paragraphs, the first dealing with false CMI and the second

with removal or alteration of CMI. Subsection (a) prohibits the knowing provision or

distribution of false CMI, if done with the intent to induce, enable, facilitate or conceal

infringement. Subsection (b) bars the intentional removal or alteration of CMI without

authority, as well as the dissemination of CMI or copies of works, knowing that the

CMI has been removed or altered without authority. Liability under subsection (b)

requires that the act be done with knowledge or, with respect to civil remedies, with

reasonable grounds to know that it will induce, enable, facilitate or conceal an


Subsection (c) defines CMI as identifying information about the work, the

author, the copyright owner, and in certain cases, the performer, writer or director of

the work, as well as the terms and conditions for use of the work, and such other

information as the Register of Copyrights may prescribe by regulation. Information

concerning users of works is explicitly excluded.

Section 1202 is subject to a general exemption for law enforcement, intelligence

and other governmental activities. (Section 1202(d)). It also contains limitations on the

liability of broadcast stations and cable systems for removal or alteration of CMI in

certain circumstances where there is no intent to induce, enable, facilitate or conceal

an infringement. (Section 1202(e)).


Any person injured by a violation of section 1201 or 1202 may bring a civil

action in Federal court. Section 1203 gives courts the power to grant a range of

equitable and monetary remedies similar to those available under the Copyright Act,

including statutory damages. The court has discretion to reduce or remit damages in

cases of innocent violations, where the violator proves that it was not aware and had

no reason to believe its acts constituted a violation. (Section 1203(c)(5)(A)). Special

protection is given to nonprofit libraries, archives and educational institutions, which

are entitled to a complete remission of damages in these circumstances. (Section


In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and

for purposes of commercial advantage or private financial gain. Under section 1204

penalties range up to a $500,000 fine or up to five years imprisonment for a first

offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent

offenses. Nonprofit libraries, archives and educational institutions are entirely

exempted from criminal liability. (Section 1204(b)).

The Digital Millennium Copyright Act of 1998

3The Fairness in Musical Licensing Act, Title II of Pub. L. No. 105-298, 112 Stat. 2827,

2830-34 (Oct. 27, 1998) also adds a new section 512 to the Copyright Act. This duplication of

section numbers will need to be corrected in a technical amendments bill.

Copyright Office and NTIA Studies Relating to Technological Development

Title I of the DMCA requires the Copyright Office to conduct two studies

jointly with NTIA, one dealing with encryption and the other with the effect of

technological developments on two existing exceptions in the Copyright Act. New

section 1201(g)(5) of Title 17 of the U.S. Code requires the Register of Copyrights and

the Assistant Secretary of Commerce for Communications and Information to report

to the Congress no later than one year from enactment on the effect that the

exemption for encryption research (new section 1201(g)) has had on encryption

research, the development of encryption technology, the adequacy and effectiveness

of technological measures designed to protect copyrighted works, and the protection

of copyright owners against unauthorized access to their encrypted copyrighted works.

Section 104 of the DMCA requires the Register of Copyrights and the Assistant

Secretary of Commerce for Communications and Information to jointly evaluate (1)

the effects of Title I of the DMCA and the development of electronic commerce and

associated technology on the operation of sections 109 (first sale doctrine) and 117

(exemption allowing owners of copies of computer programs to reproduce and adapt

them for use on a computer), and (2) the relationship between existing and emergent

technology and the operation of those sections. This study is due 24 months after the

date of enactment of the DMCA.


Title II of the DMCA adds a new section 512 to the Copyright Act3 to create

four new limitations on liability for copyright infringement by online service providers.

The limitations are based on the following four categories of conduct by a service


1. Transitory communications;

2. System caching;

3. Storage of information on systems or networks at direction of users;


4. Information location tools.

New section 512 also includes special rules concerning the application of these

limitations to nonprofit educational institutions.

Each limitation entails a complete bar on monetary damages, and restricts the

availability of injunctive relief in various respects. (Section 512(j)). Each limitation

relates to a separate and distinct function, and a determination of whether a service

provider qualifies for one of the limitations does not bear upon a determination of

whether the provider qualifies for any of the other three. (Section 512(n)).

The failure of a service provider to qualify for any of the limitations in section

512 does not necessarily make it liable for copyright infringement. The copyright

owner must still demonstrate that the provider has infringed, and the provider may still

avail itself of any of the defenses, such as fair use, that are available to copyright

defendants generally. (Section 512(l)).

In addition to limiting the liability of service providers, Title II establishes a

procedure by which a copyright owner can obtain a subpoena from a federal court

ordering a service provider to disclose the identity of a subscriber who is allegedly

engaging in infringing activities. (Section 512(h)).

Section 512 also contains a provision to ensure that service providers are not

placed in the position of choosing between limitations on liability on the one hand and

preserving the privacy of their subscribers, on the other. Subsection (m) explicitly

states that nothing in section 512 requires a service provider to monitor its service or

access material in violation of law (such as the Electronic Communications Privacy Act)

in order to be eligible for any of the liability limitations.

Eligibility for Limitations Generally

A party seeking the benefit of the limitations on liability in Title II must qualify

as a “service provider.” For purposes of the first limitation, relating to transitory

communications, “service provider” is defined in section 512(k)(1)(A) as “an entity

offering the transmission, routing, or providing of connections for digital online

communications, between or among points specified by a user, of material of the user’s

choosing, without modification to the content of the material as sent or received.” For

purposes of the other three limitations, “service provider” is more broadly defined in

section 512(k)(l)(B) as “a provider of online services or network access, or the operator

of facilities therefor.”

In addition, to be eligible for any of the limitations, a service provider must

meet two overall conditions: (1) it must adopt and reasonably implement a policy of

terminating in appropriate circumstances the accounts of subscribers who are repeat

infringers; and (2) it must accommodate and not interfere with “standard technical

measures.” (Section 512(i)). “Standard technical measures” are defined as measures

that copyright owners use to identify or protect copyrighted works, that have been

developed pursuant to a broad consensus of copyright owners and service providers

in an open, fair and voluntary multi-industry process, are available to anyone on

reasonable nondiscriminatory terms, and do not impose substantial costs or burdens

on service providers.

Limitation for Transitory Communications

In general terms, section 512(a) limits the liability of service providers in

circumstances where the provider merely acts as a data conduit, transmitting digital

information from one point on a network to another at someone else’s request. This

limitation covers acts of transmission, routing, or providing connections for the

information, as well as the intermediate and transient copies that are made automatically

in the operation of a network.

In order to qualify for this limitation, the service provider’s activities must meet

the following conditions:

  • The transmission must be initiated by a person other than the provider.
  • The transmission, routing, provision of connections, or copying must

be carried out by an automatic technical process without selection of

material by the service provider.

  • The service provider must not determine the recipients of the material.
  • Any intermediate copies must not ordinarily be accessible to anyone

other than anticipated recipients, and must not be retained for longer

than reasonably necessary.

  • The material must be transmitted with no modification to its content.

Limitation for System Caching

Section 512(b) limits the liability of service providers for the practice of

retaining copies, for a limited time, of material that has been made available online by

a person other than the provider, and then transmitted to a subscriber at his or her

direction. The service provider retains the material so that subsequent requests for the

same material can be fulfilled by transmitting the retained copy, rather than retrieving

the material from the original source on the network.

The benefit of this practice is that it reduces the service provider’s bandwidth

requirements and reduces the waiting time on subsequent requests for the same

information. On the other hand, it can result in the delivery of outdated information

to subscribers and can deprive website operators of accurate “hit” information —

information about the number of requests for particular material on a website — from

which advertising revenue is frequently calculated. For this reason, the person making

the material available online may establish rules about updating it, and may utilize

technological means to track the number of “hits.”

The limitation applies to acts of intermediate and temporary storage, when

carried out through an automatic technical process for the purpose of making the

material available to subscribers who subsequently request it. It is subject to the

following conditions:

  • The content of the retained material must not be modified.

The provider must comply with rules about “refreshing” material—

replacing retained copies of material with material from the

original location— when specified in accordance with a generally

accepted industry standard data communication protocol.

  • The provider must not interfere with technology that returns “hit”

information to the person who posted the material, where such

technology meets certain requirements.

  • The provider must limit users’ access to the material in accordance with

conditions on access (e.g., password protection) imposed by the person

who posted the material.

  • Any material that was posted without the copyright owner’s authorization

must be removed or blocked promptly once the service provider

has been notified that it has been removed, blocked, or ordered to be

removed or blocked, at the originating site.

Limitation for Information Residing on Systems or Networks at the

Direction of Users

Section 512(c) limits the liability of service providers for infringing material on

websites (or other information repositories) hosted on their systems. It applies to

storage at the direction of a user. In order to be eligible for the limitation, the

following conditions must be met:

  • The provider must not have the requisite level of knowledge of the

infringing activity, as described below.

  • If the provider has the right and ability to control the infringing activity,

it must not receive a financial benefit directly attributable to the

infringing activity.

  • Upon receiving proper notification of claimed infringement, the

provider must expeditiously take down or block access to the material.

In addition, a service provider must have filed with the Copyright Office a

designation of an agent to receive notifications of claimed infringement. The Office

provides a suggested form for the purpose of designating an agent

( and maintains a list of agents on the

Copyright Office website (

Under the knowledge standard, a service provider is eligible for the limitation

on liability only if it does not have actual knowledge of the infringement, is not aware

of facts or circumstances from which infringing activity is apparent, or upon gaining

such knowledge or awareness, responds expeditiously to take the material down or

block access to it.

The statute also establishes procedures for proper notification, and rules as to

its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright

owner submits a notification under penalty of perjury, including a list of specified

elements, to the service provider’s designated agent. Failure to comply substantially

with the statutory requirements means that the notification will not be considered in

determining the requisite level of knowledge by the service provider. If, upon receiving

a proper notification, the service provider promptly removes or blocks access to the

material identified in the notification, the provider is exempt from monetary liability.

In addition, the provider is protected from any liability to any person for claims based

on its having taken down the material. (Section 512(g)(1)).

In order to protect against the possibility of erroneous or fraudulent

notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the

subscriber the opportunity to respond to the notice and takedown by filing a counter

notification. In order to qualify for the protection against liability for taking down

material, the service provider must promptly notify the subscriber that it has removed

or disabled access to the material. If the subscriber serves a counter notification

complying with statutory requirements, including a statement under penalty of perjury

that the material was removed or disabled through mistake or misidentification, then

unless the copyright owner files an action seeking a court order against the subscriber,

the service provider must put the material back up within 10-14 business days after

receiving the counter notification.

Penalties are provided for knowing material misrepresentations in either a

notice or a counter notice. Any person who knowingly materially misrepresents that

material is infringing, or that it was removed or blocked through mistake or misidentification,

is liable for any resulting damages (including costs and attorneys’ fees) incurred

by the alleged infringer, the copyright owner or its licensee, or the service provider.

(Section 512(f)).

Limitation for Information Location Tools

Section 512(d) relates to hyperlinks, online directories, search engines and the

like. It limits liability for the acts of referring or linking users to a site that contains

infringing material by using such information location tools, if the following conditions

are met:

  • The provider must not have the requisite level of knowledge that the

material is infringing. The knowledge standard is the same as under the

limitation for information residing on systems or networks.

  • If the provider has the right and ability to control the infringing activity,

the provider must not receive a financial benefit directly attributable to

the activity.

  • Upon receiving a notification of claimed infringement, the provider

must expeditiously take down or block access to the material.

These are essentially the same conditions that apply under the previous

limitation, with some differences in the notification requirements. The provisions

establishing safeguards against the possibility of erroneous or fraudulent notifications,

as discussed above, as well as those protecting the provider against claims based on

having taken down the material apply to this limitation. (Sections 512(f)-(g)).

Special Rules Regarding Liability of Nonprofit Educational Institutions

Section 512(e) determines when the actions or knowledge of a faculty member

or graduate student employee who is performing a teaching or research function may

affect the eligibility of a nonprofit educational institution for one of the four limitations

on liability. As to the limitations for transitory communications or system caching, the

faculty member or student shall be considered a “person other than the provider,” so

as to avoid disqualifying the institution from eligibility. As to the other limitations, the

knowledge or awareness of the faculty member or student will not be attributed to the

institution. The following conditions must be met:

  • the faculty member or graduate student’s infringing activities do not

involve providing online access to course materials that were required

or recommended during the past three years;

  • the institution has not received more than two notifications over the

past three years that the faculty member or graduate student was

infringing; and

  • the institution provides all of its users with informational materials

describing and promoting compliance with copyright law.


Title III expands the existing exemption relating to computer programs in

section 117 of the Copyright Act, which allows the owner of a copy of a program to

make reproductions or adaptations when necessary to use the program in conjunction

with a computer. The amendment permits the owner or lessee of a computer to make

or authorize the making of a copy of a computer program in the course of maintaining

or repairing that computer. The exemption only permits a copy that is made

automatically when a computer is activated, and only if the computer already lawfully

contains an authorized copy of the program. The new copy cannot be used in any

other manner and must be destroyed immediately after the maintenance or repair is



Clarification of the Authority of the Copyright Office

Section 401(b), adds language to section 701 of the Copyright Act confirming

the Copyright Office’s authority to continue to perform the policy and international

functions that it has carried out for decades under its existing general authority.

Ephemeral Recordings for Broadcasters

Section 112 of the Copyright Act grants an exemption for the making of

“ephemeral recordings.” These are recordings made in order to facilitate a transmission.

Under this exemption, for example, a radio station can record a set of songs and

broadcast from the new recording rather than from the original CDs (which would

have to be changed “on the fly” during the course of a broadcast).

As it existed prior to enactment of the DMCA, section 112 permitted a

transmitting organization to make and retain for up to six months (hence the term

“ephemeral”) no more than one copy of a work if it was entitled to transmit a public

performance or display of the work, either under a license or by virtue of the fact that

there is no general public performance right in sound recordings (as distinguished from

musical works).

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA)

created, for the first time in U.S. copyright law, a limited public performance right in

sound recordings. The right only covers public performances by means of digital

transmission and is subject to an exemption for digital broadcasts (i.e., transmissions

by FCC licensed terrestrial broadcast stations) and a statutory license for certain

subscription transmissions that are not made on demand (i.e. in response to the specific

request of a recipient).

Section 402 of the DMCA expands the section 112 exemption to include

recordings that are made to facilitate the digital transmission of a sound recording

where the transmission is made under the DPRA’s exemption for digital broadcasts or

statutory license. As amended, section 112 also permits in some circumstances the

circumvention of access control technologies in order to enable an organization to

make an ephemeral recording.

Distance Education Study

In the course of consideration of the DMCA, legislators expressed an interest

in amending the Copyright Act to promote distance education, possibly through an

expansion of the existing exception for instructional broadcasting in section 110(2).

Section 403 of the DMCA directs the Copyright Office to consult with affected parties

and make recommendations to Congress on how to promote distance education

through digital technologies. The Office must report to Congress within six months

of enactment.

The Copyright Office is directed to consider the following issues:

  • The need for a new exemption;
  • Categories of works to be included in any exemption;
  • Appropriate quantitative limitations on the portions of works that may

be used under any exemption;

  • Which parties should be eligible for any exemption;
  • Which parties should be eligible recipients of distance education

material under any exemption;

  • The extent to which use of technological protection measures should

be mandated as a condition of eligibility for any exemption;

  • The extent to which the availability of licenses should be considered in

assessing eligibility for any exemption; and

  • Other issues as appropriate.

Exemption for Nonprofit Libraries and Archives

Section 404 of the DMCA amends the exemption for nonprofit libraries and

archives in section 108 of the Copyright Act to accommodate digital technologies and

evolving preservation practices. Prior to enactment of the DMCA, section 108

permitted such libraries and archives to make a single facsimile (i.e., not digital) copy

of a work for purposes of preservation or interlibrary loan. As amended, section 108

permits up to three copies, which may be digital, provided that digital copies are not

made available to the public outside the library premises. In addition, the amended

section permits such a library or archive to copy a work into a new format if the

original format becomes obsolete—that is, the machine or device used to render the

work perceptible is no longer manufactured or is no longer reasonably available in the

commercial marketplace.

Webcasting Amendments to the Digital Performance Right in Sound


As discussed above, in 1995 Congress enacted the DPRA, creating a

performance right in sound recordings that is limited to digital transmissions. Under

that legislation, three categories of digital transmissions were addressed: broadcast

transmissions, which were exempted from the performance right; subscription

transmissions, which were generally subject to a statutory license; and on-demand

transmissions, which were subject to the full exclusive right. Broadcast transmissions

under the DPRA are transmissions made by FCC-licensed terrestrial broadcast stations.

In the past several years, a number of entities have begun making digital

transmissions of sound recordings over the Internet using streaming audio technologies.

This activity does not fall squarely within any of the three categories that were

addressed in the DPRA. Section 405 of the DMCA amends the DPRA, expanding the

statutory license for subscription transmissions to include webcasting as a new category

of “eligible nonsubscription transmissions.”

In addition to expanding the scope of the statutory license, the DMCA revises

the criteria that any entity must meet in order to be eligible for the license (other than

those who are subject to a grandfather clause, leaving the existing criteria intact). It

revises the considerations for setting rates as well (again, subject to a grandfather

clause), directing arbitration panels convened under the law to set the royalty rates at

fair market value.

This provision of the DMCA also creates a new statutory license for making

ephemeral recordings. As indicated above, section 402 of the DMCA amends section

112 of the Copyright Act to permit the making of a single ephemeral recording to

facilitate the digital transmission of sound recording that is permitted either under the

DPRA’s broadcasting exemption or statutory license. Transmitting organizations that

wish to make more than the single ephemeral recording of a sound recording that is

permitted under the outright exemption in section 112 are now eligible for a statutory

license to make such additional ephemeral recordings. In addition, the new statutory

license applies to the making of ephemeral recordings by transmitting organizations

other than broadcasters who are exempt from the digital performance right, who are

not covered by the expanded exemption in section 402 of the DMCA.

Assumption of Contractual Obligations upon Transfers of Rights in

Motion Pictures

Section 416 addresses concerns about the ability of writers, directors and screen

actors to obtain residual payments for the exploitation of motion pictures in situations

where the producer is no longer able to make these payments. The guilds’ collective

bargaining agreements currently require producers to obtain assumption agreements

from distributors in certain circumstances, by which the distributor assumes the

producer’s obligation to make such residual payments. Some production companies

apparently do not always do so, leaving the guilds without contractual privity enabling

them to seek recourse from the distributor.

The DMCA adds a new chapter to Title 28 of the U.S. Code that imposes on

transferees those obligations to make residual payments that the producer would be

required to have the transferee assume under the relevant collective bargaining

agreement. The obligations attach only if the distributor knew or had reason to know

that the motion picture was produced subject to a collective bargaining agreement, or

in the event of a court order confirming an arbitration award under the collective

bargaining agreement that the producer cannot satisfy within ninety days. There are

two classes of transfers that are excluded from the scope of this provision. The first

is transfers limited to public performance rights, and the second is grants of security

interests, along with any subsequent transfers from the security interest holder.

The provision also directs the Comptroller General, in consultation with the

Register of Copyrights, to conduct a study on the conditions in the motion picture

industry that gave rise to this provision, and the impact of the provision on the

industry. The study is due two years from enactment.


Title V of the DMCA, entitled the Vessel Hull Design Protection Act

(VHDPA), adds a new chapter 13 to Title 17 of the U.S. Code. It creates a new system

for protecting original designs of certain useful articles that make the article attractive

or distinctive in appearance. For purposes of the VHDPA, “useful articles” are limited

to the hulls (including the decks) of vessels no longer than 200 feet.

A design is protected under the VHDPA as soon as a useful article embodying

the design is made public or a registration for the design is published. Protection is lost

if an application for registration is not made within two years after a design is first made

public, but a design is not registrable if it has been made public more than one year

before the date of the application for registration. Once registered, protection

continues for ten years from the date protection begins.

The VHDPA is subject to a legislative sunset: the Act expires two years from

enactment (October 28, 2000). The Copyright Office is directed to conduct two joint

studies with the Patent and Trademark Office—the first by October 28, 1999 and the

second by October 28, 2000—evaluating the impact of the VHDPA.


Most provisions of the DMCA are effective on the date of enactment. There

are, however, several exceptions. The technical amendments in Title I that relate to

eligibility of works for protection under U.S. copyright law by virtue of the new WIPO

treaties do not take effect until the relevant treaty comes into force. Similarly,

restoration of copyright protection for such works does not become effective until the

relevant treaty comes into force. The prohibition on the act of circumvention of access

control measures does not take effect until two years from enactment (October 28,


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