Technology: The Digital Millennium Copyright Act, shield and sword

Not only is the DMCA able to protect you, but you can use the act offensively as well

The Digital Millennium Copyright Act (DMCA) of 1998 was enacted as a response to rapidly-changing technologies and some of the tensions created thereby: Copyright owners felt that the laws then on the books were insufficient to protect their rights, and ISPs and online bulletin board owners were being hit with copyright suits over user-generated content they did not directly control. Among its innovations, DMCA criminalizes “circumvention” measures, i.e., technology or services that avoid measures intended to control access to and protect copyrighted works..

The DMCA is most notable, however, for providing a shield – or “safe harbor” – from copyright liability to entities hosting user-generated content posted at the direction of a user. Under the DMCA, online service providers like YouTube or Facebook that allow users to post content can obtain protection from liability if they meet certain technical requirements and promptly remove user-generated content when they receive notice (or otherwise recognize) that user-generated content is infringing. Among the technical requirements are designating with the U.S. Copyright Office, the company’s agent for receiving DMCA takedown notices, and informing users of the company policy on copyright infringement, including repeated infringement.

Contributing Author

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Christopher D. Mickus

Christopher D. Mickus is an attorney with Neal, Gerber & Eisenberg LLP (Chicago). He is a partner and leader of the firm’s recently-launched Advertising, Marketing...

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Katherine Nye

Katherine Nye is an intellectual property attorney in the Advertising, Marketing and Social Media Group at Neal, Gerber & Eisenberg LLP (Chicago). She regularly...

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