Digital Millennium Copyright Act
V.
The DMCA
“The Digital Millennium Copyright Act (DMCA) is a federal statute that addresses a number of copyright issues created by the use of new technology and the Internet, including digital rights management and certain rights and privileges (safe harbors) that protect Internet Service Providers” (Legal Information Institute). Social media platforms have to conform to the DMCA and have different ways of working it into their platforms.
The DMCA’s safe harbors provide immunity to Internet Service Providers (ISPs) for copyright infringement committed by their users as long as they meet specific requirements: (a) have no actual knowledge of infringing material on their platforms; (b) provide a system for copyright holders to submit takedown notices; (c) not financially benefit from infringing content; and (d) terminate the accounts of repeat infringers (Cornell Law School).
DMCA’s History
The DMCA was signed into law in 1998 to establish a national version of laws that comply with the World Intellectual Property Organization's (WIPO) treaties. This is so copyright law can be enforced worldwide in various countries. The DMCA is partially based on two specific treaties from the WIPO: the WIPO Copyright Treaty, WCT, and the WIPO Performances and Phonograms Treaty, WPPT (U.S. Copyright Office Summary).
The WCT and WPPT are treaties passed by the WIPO in 1996. These treaties were passed to extend previous WIPO treaties. The WCT clarified that three new rights were granted to authors. Those are the right of distribution, the right of rental, and the right of communication to the public. The right of Distribution grants the author the right to distribute originals or copies of works. The right of rental allows the author to rent certain materials, including computer programs, Cinematic works, and phonograms. Lastly, the right of communication to the public is the right for the public to access any communications sent over the internet at any place and time (WIPO WCT).
The WPPT granted rights focused on performers and the producers of phonograms. According to the WIPO, a phonogram is a fixation of sound. This means audio recordings, like a Master from a singer, have certain rights beyond typical copyright. The WPPT grants the rights of reproduction, distribution, rental, and making available. These rights are the same between performers and the producers of phonograms. The right of reproduction allows them to reproduce the phonogram. The right of distribution will enable them to distribute and sell the phonogram. The right to rental and to make available is the same as it is under WCT only for phonograms (WIPO WPPT).
The videos below are from YouTube about how to use their Content ID system, and file a copyright strike.
YouTube and Its Systems
YouTube is one of the world's largest, if not the largest, internet platforms. It started in 2008 as a simple video-sharing website but quickly became the largest platform for people to upload and watch videos. To comply with the DMCA and meet its safe harbor requirements, YouTube must take certain steps to identify copyrighted works before and after they go up onto the platform. They have several systems that deal with copyright built into the platform.
First is the Content ID system. The system allows copyright holders to submit their copyrighted audio or video content, which is added to YouTube’s database. Using that database, “Content ID identifies matches of copyright-protected content. When a video is uploaded to YouTube, it's automatically scanned by Content ID. If Content ID finds a match, the matching video will get a Content ID claim” (How Content ID Works).
The Content ID system can then do several things based on what the copyright holder wants. The holder can block the video from being shown in the countries where the copyright holder’s ownership is recognized. This stops the uploader from making money or getting views on the video. The holder can monetize the video, meaning that the holder will retain money made from ads playing on the video. Lastly, the holder could track the video statistics, to see how popular their content is when others use it (YouTube). The Content ID system is not without controversy.
This system is also helpful in alerting the copyright holder if their content is being uploaded onto the site without their permission. In addition, the system will alert anyone uploading content of the section of the video that may be infringing and that the potential uploader should consider whether they want to use the clip.
YouTube also has a copyright strike system. The copyright strike system has more extreme penalties. The system works by the owner of the claimed work to submit a webform to YouTube. YouTube will then notify the channel in question, letting the channel file a counterclaim, meaning that the creator has the right to upload the content or the content is being used in fair use and, therefore, is not subject to a copyright strike. Suppose the original claimant does not back down and the uploader does not remove the content from the video or the channel. In that case, it became an official legal issue and is no longer YouTube’s problem. If a channel receives three strikes on their channel within 90 days, then the channel is automatically deleted, and the only way to get it back is to appeal the decision (YouTube).
TikTok and Its System
TikTok, like YouTube, has a web form that a copyright holder may fill out for the holder to claim any copyrighted work (TikTok). TikTok, however, does not have a system like YouTube’s Content ID system. This means that removing videos that infringe copyrights will take time.
References
Cornell Law School. (n.d.). Digital Millennium Copyright Act. Legal Information Institute. Retrieved from https://www.law.cornell.edu/wex/digital_millennium_copyright_act
YouTube. (n.d.). How YouTube works: Copyright policies. Retrieved from https://www.youtube.com/howyoutubeworks/policies/copyright/#enforcing-copyright
Google Support. (n.d.). Copyright and rights management: Copyright takedown notices. Retrieved from https://support.google.com/youtube/answer/2797370?hl=en
Google Support. (n.d.). Counter notification basics. Retrieved from https://support.google.com/youtube/answer/7071269?hl=en
Google Transparency Report. (2022). Copyright transparency report: July to December 2022 (Version 1). Retrieved from https://storage.googleapis.com/transparencyreport/report-downloads/pdf-report-22_2022-7-1_2022-12-31_en_v1.pdf
U.S. Copyright Office. (n.d.). DMCA Section 104 report: Executive summary. Retrieved from https://www.copyright.gov/reports/studies/dmca/dmca_executive.html
TikTok Support. (n.d.). Copyright. Retrieved from https://support.tiktok.com/en/safety-hc/account-and-user-safety/copyright
Information Technology and Innovation Foundation. (2022). IP and the Metaverse: The DMCA will face serious challenges in the Metaverse. Retrieved from https://itif.org/publications/2022/09/19/ip-and-the-metaverse-the-dmca-will-face-serious-challenges-in-the-metaverse/
World Intellectual Property Organization (WIPO). (n.d.). WIPO Copyright Treaty (WCT) summary. Retrieved from https://www.wipo.int/treaties/en/ip/wct/summary_wct.html
World Intellectual Property Organization (WIPO). (n.d.). WIPO Performances and Phonograms Treaty (WPPT) summary. Retrieved from https://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html
Cornell Law School. (n.d.). U.S. Code § 512 - Limitations on liability relating to material online. Legal Information Institute. Retrieved fromhttps://www.law.cornell.edu/uscode/text/17/512