DMCA protection – Why it fails to prevent copyright infringement.
What DMCA is, what protection it provides, and why it fails to protect copyright owners from the illegal distribution or piracy and use of their works.
What is DMCA?
The Digital Millennium Copyright Act (DMCA) is a US law designed to give copyright holders the ability to protect themselves from the unlawful distribution and reproduction of their creative works online. It contains various other provisions designed to criminalize the circumvention of copy-prevention systems while providing safety for ISPs against copyright infringement, allowing limited copies for computer repairs, and more.
However, while DMCA protection is the first tool many authors and artists turn to, there are often misunderstandings surrounding what is protected by DMCA and how much support the legislation can provide. Here we aim to de-mystify the legislation and the situations in which it can be useful to artists.
What is protected by DMCA?
DMCA protects anything that could be reasonably considered digital content. This includes music, movies, text, images, and anything else that is copyrighted material.
One of the most common myths is that a work needs to be registered with an authority before you can send a DMCA takedown request. In reality, any content becomes your intellectual property the second you create it. And if it is your intellectual property, it is protected by DMCA.
That is not to say that copyright registration is useless. It is key if you want to move beyond a takedown request to file a lawsuit or claim monetary damages for the misuse of your IP. This scenario occurs regularly if the accused sends a counter-notification stating that they did not infringe on your copyright.
What does DMCA protected mean?
You may have seen a “DMCA protected” or “protected by DMCA” sticker under certain content or been encouraged to add one to your digital content. By what does it actually mean?
In reality, not much. This doesn’t grant you any extra rights – it just reminds people of your inherent copyright and indicates to them that you’re serious about protecting your IP.
What is a DMCA takedown notice or request?
A DMCA takedown notice is the first step in getting content that violates your copyright removed from the internet. They are an official declaration to the people responsible for hosting the content (be that a company, search engine, ISP, or web host) that their actions surrounding the material infringe on your copyright.
Typically, a DMCA takedown notice is first sent to the person/company or website hosting or linking to the material. They should immediately take action to remove the content or link. If they do not, then the web host or ISP may be able to remove it.
Where DMCA protection and takedown notices fall short
DMCA takedown requests can have an impact, but they are not especially helpful when it comes to internet content. There are various instances in which a DMCA takedown notice is all but useless to the copyright holder:
- The website is not located in a country that follows DMCA or other copyright laws
There are currently 85 countries that are not contracting parties of the WIPO treaty. Their citizens and companies are therefore not bound by law to remove content that infringes on an international citizen’s copyright. This leaves a lot of leeway for bad actors, as all they need to do to circumvent DMCA and similar laws is to host the content in countries that are not signatories.
- You are not a US citizen, and therefore are not covered by DMCA
DMCA is a US law and only affords protection to US citizens. There is a good chance that your work is covered by an equivalent law such as the EU’s Electronic Commerce Directive, but this will likely work a bit differently than DMCA. And, if you are in a country that does not care about copyright protection, you may be out of luck.
- The party hosting your content does not care that they are breaking the law
DMCA takedown notices are primarily useful for instances when a party does not realize that they are breaking the law. Those who are purposefully sharing pirated content often take steps to reduce the risk to themselves and make it all but impossible to get the content removed.
- Content is not available publicly
If copyright content is being shared in a closed system (i.e. not in the public domain) then it may be difficult to gain access to enforce the DMCA. Content not available for public distribution can be hard to detect to begin with unless the copyright owner is made aware of the infringement.
There are a wide variety of pirate sites specifically designed to take advantage of these factors. The sad reality is that if it is possible to make an unprotected copy of your work and there is sufficient interest, DMCA takedowns are of little help. Removal from search engines may cause some inconvenience for pirates, but ultimately, they can just use a search engine that doesn’t enforce these filters (DuckDuckGo or Yandex). Likewise, DMCA requests can get files removed from file hosts, but it’s a simple matter for somebody to upload them again or distribute the files via a torrent.
DMCA protection is a bit more useful when physical merchandise is made of a digital piece without your permission. It is often easier to identify the owner of, say, a t-shirt seller on Etsy than an anonymous user posting on a forum or torrent site. Additionally, the number of storefronts a person can list such items on is limited and it is time consuming and expensive for somebody to re-create the same products and following.
What to do when DMCA protection fails
The difficult part about digital intellectual property is that once the cat is out of the bag it is almost impossible to get in back in. Your main course of action when a DMCA request is ignored or disputed is to take it to court in a copyright infringement claim. However, this is a complicated and often expensive process. The cost of such a case, on average is around $300,000, with the process taking over a year.
As well as having copyright registration, you need to show that:
- The defendant acted willfully
- That they sought commercial or financial gain
But to have a case, you need to have a person or organization to bring court in the first place. Usually, the users who upload files to piracy sites go to extreme lengths to hide their identities. The owners of said piracy sites are likewise highly secretive and often operate in countries that are not under U.S. jurisdiction. This usually leads to a situation where meaningful action against them by law enforcement requires the backing and lobbying of multiple multi-million-dollar media companies. In cases where this has been successful, such as with The Pirate Bay, mirrors or competing sites usually pop up within weeks. You are essentially playing whack-a-mole, except due to the slow nature of the system, it’s a game you’ll never win.
It’s clear, then, that any reasonable attempt to stop copyright infringement needs to be focused on prevention.
Preventing copyright infringement with DRM & encryption
To stop piracy and other forms of digital copyright infringement, you need to be able to control who can view, copy, and share your content. This is only possible through the use of digital rights management (DRM) software.
There are hundreds of DRM service providers or vendors out there for various industries and file formats, from WideVine for video streaming to Denovo for video games. We’ll be focusing on our area of expertise, however: documents – and use this to explain what a DRM solution needs to be effective.
What functionality does (and doesn’t) a DRM system need?
Many people will tell you that DRM is about preventing unauthorized copies of a file. This is a bit of a simplification, however. What they are really referring to is useful copies, because preventing file copying entirely is a near impossibility in this age of computing. Modern devices are fundamentally designed around copying, with numerous ways to achieve it. DRM solutions that claim to stop somebody from moving a file from one computer to another are at best ineffective and at worst snake oil.
So, how do you stop a copied file from being useful? The answer is encryption. When you encrypt a file, it is nothing but a jumble of numbers and letters to anyone without a valid key to decrypt it. A user can make copies of a file all they like, but if the person they send it to does not have the key, it is useless.
But you still have to control who can get the key. This is a very important (and often overlooked) part of successful DRM software. If the key or keystore is not securely transmitted or can be used on other devices, then a malicious party can send it to an unauthorized user along with the file or document.
Once you have the above figured out, you’ve successfully prevented people who aren’t authorized to open the document from doing so. However, you still need to control what happens after the document is opened. To prevent authorized editing, copying, and printing, you need a DRM solution that uses its own secure viewer application. That application should only decode the contents of the document in memory so that there are no temporary files from which users can pull the decrypted content. It must also either disable or not include functionality to print, edit, and copy paste, while blocking screenshots from both OS-level and third-party tools.
Of course, while it may sound simple outlined above, implementing this in a way that remains convenient for the end user without introducing security vulnerabilities is very difficult. This is why effective DRM solutions are so uncommon.
How Locklizard prevents copyright infringement & piracy
Locklizard Safeguard is DRM software designed to significantly reduce the risk that your ebook or other PDF documentends up on a piracy site in the first place. Through the combination of encryption, secure transparent licensing, and a secure viewer application, it allows content owners, creators, authors and publishers to:
- Stop unauthorized sharing and viewing by locking documents to authorized devices
- Lock documents to authorized locations and IP addresses (i.e. to stop an ebook from being used in a country where there are no distribution rights)
- Prevent screenshots from being taken by first and third-party tools
- Stop copying, editing, and saving
- Stop or control printing (limit prints to a certain number, reduce the quality of printed copies)
- Apply dynamic watermarks to a document that identify the user reading it
- Expire access to a document after a certain date or number of views (useful for subscription products)
- Manually revoke access to a document after distribution to address chargebacks and payment fraud
- Track when people are viewing and printing documents and where from
- Distribute keys transparently and securely to an encrypted keystore on user’s devices through the use of a limited-use license file
- Allow document access offline for limited periods or indefinitely
Through the use of these flexible and modular controls, you can protect your intellectual property and make sure that the DMCA process is a last resort.
Take a 15-day free trial of our DRM software today and see how Locklizard can protect your intellectual property from unauthorized copying and theft without the need for DMCA takedowns or litigation.
What is copyright infringement?
Copyright infringement is the use of works without gaining the copyright holder’s permission.
How does the internet change copyright infringement?
It makes it easier to infringe copyright since digital media can be easily copied for no additional cost and works are readily available worldwide.
What happens if you get a notice of copyright infringement?
You need to respond to the demands of the notice if you have infringed copyright. Failure to remove infringing material could result in civil and criminal penalties.
What is fair use of copyrighted material?
Fair use permits limited use of copyrighted material without having to first acquire permission from the copyright owner or holder.
How do I get copyright protection of my work?
Copyright is an automatic right in most countries and under international copyright conventions it is protected in many countries worldwide. You don’t have to apply for copyright and there is no official register of copyright holders worldwide.
If you want to register your work then use a Copyright Office (a government body that maintains a register of copyrights) to do so.
What is DMCA protection?
DMCA protection means that digital works are protected by the Digital Millennium Copyright Act (DMCA). The DMCA is a US federal law designed to protect copyright holders from the unlawful reproduction or distribution of their works -i.e. prevent digital piracy.
When was the DMCA passed into law?
On October 12th 1998 congress passed the DMCA into law, but it only became effective in October 2000.
Does the DMCA only protect digital content?
Yes. The DMCA covers just digital content – digital music, movies, text, images, and anything that is copyrighted and distributed online.
Does DMCA enforce copyright?
Not necessarily. It depends on the country the copyright violation takes place in, how easy it is to enforce the law, and whether content is in the public domain. Being a US law, it is most effective in the United States.
Does the Digital Millennium Copyright Act cover the EU?
No, the EU has their own copyright legislation for member states. The ‘European Union Directive on Copyright in the Digital Single Market’ is a European Union directive that is designed to limit how copyrighted material is copied and used online.
What does DMCA free mean?
DMCA free means that content can be distributed freely without it being taken down or removed from a site due to copyright infringement.
While it does not give an exclusive right to use content, the copyright owner has stated they will not pursue legal action in enforcing their intellectual property rights. An example of this is Creative Commons licenses.
How does DRM protect copyright?
DRM or Digital Rights Management uses technological protection measures to prevent unauthorized access and use of content. DRM technologies are used for commercial purposes to protect rights holders from theft or digital piracy of their works.
How does the DCMA work with DRM or Digital Rights Management?
The DMCA makes it illegal to circumvent (bypass or remove) technological measures that are used to protect copyrighted works.