March 2011 Archives

Delving into the DMCA, Part I: What-All Is Even In There???

This post marks the first in an at-least-two-part series on the DMCA, partly because it's good preparation for a talk I'm giving at the Library Technology Conference next week. This installment is dedicated to Iris, who was looking for "an actually readable summary of the DMCA" the other day. Hope this is progress.

Nothing in U.S. copyright law is straightforward, but the Digital Millennium Copyright Act (DMCA) is a special source of confusion. One reason for the confusion is that several DMCA provisions are extremely technical with regard to both legal and technological details. Another reason for the confusion is that, while most people think of the DMCA as something like "the digital/internet copyright stuff",  the DMCA was actually a catch-all bill that included a number of revisions and additions to existing copyright laws, some of which had nothing to do with internet tech or digital formats at all. Herewith (how's that for a lawyer word?), a brief overview of what-all is/was in the DMCA.

The Legislation

boat on a beach
Hammamet boat BY-NC-ND Stewart Morris

The Digital Millenium Copyright Act, (P.L. 105-304 - link retrieves full text of the bill) was passed on October 28, 1998. It was subtitled, "An Act To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes."

The act itself is made up of five "titles", or sections. The Titles' titles are, in order, "WIPO Treaties Implementation", "Online Copyright Infringement Liability Limitation", "Computer Maintenance or Repair Copyright Exemption", "Miscellaneous Provisions", and "Protection of Certain Original Designs". Some provisions from Titles I-IV may be familiar to readers with more than a passing acquaintance with copyright law. Provisions from Title V are less likely to be familiar, unless you are an IP geek or participate in certain expensive hobbies.

The DMCA amended and added to existing copyright law in several different ways. It created several brand new sections of the copyright code (17 U.S.C. §§ 512, 1201-1205, 1301-1332; 28 U.S.C. § 4001) and made major changes to several other sections. All of these alterations were "part of the DMCA", but you've probably only heard of a few of them.

The DMCA Stuff You've Heard About

The "big name" pieces of the DMCA are from Titles I and II: the "anticircumvention" provisions (codified at 17 U.S.C. § 1201), and the "notice-and-takedown" provisions (codified at 17 U.S.C. § 512). I plan separate "Delving into the DMCA" posts on each of them, because they are well-known for good reasons!

You are likely to have heard of the anticircumvention provisions partly because they create civil and criminal liability for many daily activities of our technology-driven lives (modifying hardware you rightfully own, taking clips of content from a DVD or Blu-Ray disc) and partly because there is a process of petitioning for exemptions to the restrictions that brings them back into the public eye every three years or so. You are likely to have heard of the notice-and-takedown provisions because, by insulating service providers from copyright liability for content users post, they've been key factors in the growth of user-generated web content (YouTube, Facebook, blogs - basically all of "Web 2.0".)

The DMCA Stuff You Haven't Heard About

fiberglass boat under construction in a workshop
image BY-NC Storer Boat Plans/Michael Storer

Title I includes several technical provisions having to do with the rights of international copyright holders, amending various pieces of U.S. code to bring us into alignment with our treaty obligations. One piece restored the copyrights in some international works that had moved into the public domain - which may actually sound familiar, as the Supreme Court just granted cert on (agreed to review) the constitutionality of a very similar, slightly earlier law.

Title I also contained a provision (17 U.S.C. § 1202) that, more or less, makes it illegal to mess with the metadata on copyrightable works. There's more to it than that, and it hasn't been well hashed-out by courts - so it's likely also a future blog post.

Title II was primarily concerned with the § 512 notice-and-takedown provisions. It also makes it clear that linking to infringing content, when there was no reason to know that linked content was infringing, the links themselves are not something service providers are liable for.

Title III updated a particular provision of the copyright code (17 U.S.C. § 117) that was enacted to deal with the ridiculous repercussions of one court's immensely stupid early computer-copyright decision.

The "Miscellaneous Provisions" of Title IV are quite wide-ranging. Two large pieces have to do with perfomance rights in sound recordings for radio and online broadcasting. Another piece has to do with collective-bargaining rights of folks involved in big-studio movie production. Perhaps the most interesting piece to readers of this blog is the provision that updated 17 U.S.C. § 108 to give libraries the right to make digital preservation copies of materials from our collections - before the DMCA, we only had an exemption for making analog copies.

Title V, the one about "Protection of Certain Original Designs" actually had its own legislative title - the "Vessel Hull Design Protection Act". That's right, the DMCA has a section about boats. (Suddenly, these illustrations make slightly more sense, eh?)

wooden rowboat
Sven's New Row Boat BY-NC-ND Let Ideas Compete

The DMCA creates a copyright-like ownership right in designs for hulls of boats less than 200 feet long that "make the article attractive or distinctive in appearance." It's not an insignificant piece of legislation, either. Copyright is not supposed to protect useful objects - that's supposed to be the realm of patent. But patent has a fairly high requirement for "novelty" and "nonobviousness" that most boat hull designs would never reach. This provision really blurs some lines between patent and copyright, and creates a whole new form of intellectual property for this very narrow field of design. For more info, check out this joint report from the U.S. Copyright Office and Patent & Trademark Office.

Wrapup/Further Reading

Anyway. There's my brief overview of the Digital Millennium Copyright Act. Hope you found it informative. If you still want to know more, the Wikipedia article is quite good; and this summary from the Copyright Office is techical, but readable (and was my main reference in writing this post.) Or you could go read the text of the legislation itself.

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Stormtroopers, Copyright, and Cultural Ownership

You may or may not have heard about the extensive saga that is George Lucas' dispute with one of the costumers/prop makers from the original Star Wars series about the copyright in Stormtrooper costumes. The prop maker has been using the molds he used to make the original props for the movies to produce and sell new Stormtrooper costume pieces for the fan costume and memorabilia market. Lucas does not like this, and wants the prop maker to stop.

It's an interesting story for copyright geeks, with some very technical wrinkles. Although the helmet designs did not originate with the prop maker, he made modifications and alterations to the design in the mold-making and casting process, so to some extent the designs are "original" to the prop maker. So who owns the design of the helmets as they came out of the mold? More fundamentally, there is a big issue as to whether a helmet is a "sculpture" (and hence copyrightable), or a utilitarian object (and hence, not ownable under UK law).

There are also some interesting international-law issues, and (although not directly applicable in the current instance of the lawsuit) some parallels to the works-for-hire/termination-of-transfers issues that are raging through the comic-book world lately (I'll probably blog about that at some point, too. Comic book copyright issues are really cool!)

Why Should I Care Who Owns Stormtrooper Designs? I'm Not A Copyright Geek or a Star Wars Fan!

Technical copyright-geekery aside, this case points up some broader public interest issues in intellectual property and popular culture. Without suggesting that George Lucas, Lucasfilm (and a bajillion other entities) don't/shouldn't have any property-like interests in their creative works, Star Wars is a great example of a creative work that has taken on a lot of additional social meaning beyond Lucas's contributions. The photos illustrating this post show just a few of the directions this property has been taken by the forces of human culture.

If Star Wars didn't have this additional meaning, there wouldn't be enough interest in Stormtrooper costumes for the prop maker to exploit! And although the cultural significance of Star Wars is certainly aided and abetted by the massive industrial content producer that is the Lucasarts empire, quite a bit of the social significance and meaning of Star Wars has only weak ties to Lucas's properties, and/or represents tremendous creativity and meaning-building outside of formal authorship and ownership structures.

crowd of stormtroopers and other Star Wars cosplayers at Indiana State Capitol building
Members of the 501st Legion at the Indiana State Capitol in 2005. Photo by Britt, 501st C3 photographer.

We All Have Our Own Stormtrooper Costumes Somewhere (not literally, although there are more than you might think...)

Two children and an adult pose in stormtrooper costumes.
Photo from the 501st Nordic Garrison site.

It's worth considering that under the first U.S. copyright term, the copyright in Episode IV (the first Star Wars movie, released in 1977) would have expired in 2005. Of course, that's not the term Episode IV was actually created or released under, and copyright law as formulated in the first U.S. copyright act would have no idea what to do with something like the Star Wars franchise. However, copyright law as formulated in early U.S. copyright acts would also have had very little conception that an individual's personal interactions with contemporary content could rise to the level of infringement.

Whether you're building a screen-accurate replica Star Wars costume for yourself (or your offspring) in your spare time or not, chances are there are elements of contemporary content with which you connect and interact on a very personal level. And since copyright ownership is so expansive, chances are many of those pieces of culture that are significant to you are legally owned by someone else, who has a legal right to stop you from doing some of the things you like to do with that content. Fair use is one part of the law that makes a little room for personal interactions with content. But since a lawsuit to establish whether a use is fair or not is very costly, most settled law around fair use reflects the interests of industrial content providers. Occasionally, industrial interests lose fair use cases anyway, often because a court has recognized a greater public interest - see Campbell v. Acuff-Rose (the "Pretty Woman" case), for example.

Judge Kozinski made some important observations in Mattel, Inc. v. MCA Records, Inc. (the "Barbie Girl" case): "Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law." (see paragraph 9) Of course, trademark and copyright are not as similar as many people think, but the central point rings true across all intellectual property that affects culturally meaningful works - while the works are certainly products of their creators, their cultural significance is a product of larger, more public, more communal, cultural forces. Yet much of the time, the law does not recognize those public and personal forces as officially legitimate.

Expanded copyright protection may (may) have increased production of resource-intensive products like the Star Wars universe. But it also means that our culture does not legally belong to us. Something to keep in mind the next time someone starts talking about copyright "balancing" public and private interests.

(True confession: One main reason I started writing this post was to use action figure photos as illustrations. It got more reflective after I started writing.This also represents the first post on this blog where some images are being used under a fair use rationale, rather than Creative Commons licenses.)

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News from UMN Copyright Program...

Coming tomorrow, a whole new UMN Copyright Website!

The new site will replace the old site sometime Wednesday morning,
at the current URL -

Here's a sneak preview:
SitePreview.pngIt's not 100% done - but we don't expect it ever will be! Part of the overhaul was moving the site to a new, easier-to-update content management system. The other goals of the overhaul are to provide more up-to-date information in more easily understood formats. Consider this something of a public beta - we welcome your feedback and input!

And coming soon - copyright info videos!

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About this Archive

This page is an archive of entries from March 2011 listed from newest to oldest.

February 2011 is the previous archive.

April 2011 is the next archive.

I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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