Introduction
Laws are established to guide human behavior and interactions and ensure this country promotes moral and legal practices in its systems. The need to amend laws is motivated by various factors, including lack of a proper description of policies, violation of human rights, absoluteness and expansion of legal frameworks that guide the conduct of stakeholders. The Digital Millennium Copyright Act (DMCA) was enacted by the 105th United States Congress and started to be implemented on October 28th, 1998 (Reyman 2012). This discussion explores various issues about this act and evaluates its effectiveness and weaknesses in transforming the lives and activities of Americans.
The Digital Millennium Copyright Act
The DMCA (The Digital Millennium Copyright Act) is a United States law that strengthens the treaties of the World Intellectual property Organization of 1996. The focus of this act was to criminalize the production and distribution of copyrighted technology, services, products, or devices and promote the protection of Digital Rights Management (DRM). It is now part of the Copyright Act Title 17 of the U.S. Code (Library of Congress 2011). This act updated the U.S. Copyright Laws to ensure the demands of the digital age are met and conform to the treaties and World Intellectual Property Organization that this country signed in 1996. There are other legislations that protect and control the access to information, but the DMCA is focused on protecting the rights of copyright holders. It regulates several sensitive studies and research by stating that the U.S. Copyright Office is the sole body mandated to do this (Hobbs 2010).
New Prohibitions on Circumvention of Protection Technologies
This section prohibits the unauthorized access, use, and change of technological security and protection measures like encryptions used by manufacturers or copyright holders to control access to their contents (Mulligan 2012). This means that copyright holders have the right to sue people or companies that access their materials without their permission to do so. Also, it protects manufacturers that have copyrights from the competition that arises from the production of devices or services that are aimed at threatening the performance and market of existing effective protection measures. Lastly, it ensures the fair use doctrine is followed and respected but highlights instances where it may be waived to protect the interests of copyright holders.
Limitations on Online Service Provider Liability
This section exempts carriers of digital information from being responsible for copyright liabilities caused by third parties that include consumers of services and products. For instance, it exempts libraries from liabilities that occur as a result of poor usage of computer systems within this department. Lastly, it establishes ways that help manufacturers to avoid copyright infringement liabilities that occur as a result of the presence of damaging information on an online service provider (Reyman 2012). It also exempts their liabilities that cause infringement as a result of poor use of information location tools and other aids offered by online service providers.
Computer Maintenance Competition Assurance
This section allows computer repairers to make copies of products or services offered by different manufacturers temporarily as they perform their duties. This section is informed by the need to ensure that computer mechanics access and use this information to protect websites or products from damages or losses that may occur in the process of repairing communication devices (Library of Congress 2011). Authorized institutions are allowed to make three copies (maximum) of copyrighted work, but should not use it for commercial purposes. It also allows the preservation of obsolete formats for future reference and use but not commercial or development purposes.
Vessel Hull Design Protection Act
This section expanded the scope of this act and ensured Boat-Hill designs are protected. This led to the inclusion of sections 1301 to 1332 under the copyright law because their forms could not be separated from their functions that are similar to all other copyrighted materials.
Miscellaneous
This title contains miscellaneous provisions like clarification and duties of the U.S. Copyright Office, statutory licenses, long-distance education, phonorecords of sound recordings and movie rights. This section added provisions and clarified other sub-sections that were not properly placed under the U.S. Copyright Protection Act.
Importance of the Act
The DMCA act has had significant impacts on the economy and activities of the United States and other countries that engage in trade activities with this country. First, it has promoted the development of the local entertainment industry because it prohibits unlawful access, production, and distribution of copyrighted content (Mulligan 2012). This is an important way of ensuring the unlawful production and distribution of songs, movies, and other digital productions are minimized. It may not be easy to eliminate music and from piracy, but this act has played significant roles in ensuring people do not engage in copyright infringements. American film and entertainment industries have enjoyed their profits because they are sure nobody will frustrate their efforts (Hobbs 2010). This has promoted investments in this industry and thus boosted the economy of America.
Secondly, this regulation does not act in isolation because it supports other international laws that govern the illegal access, production, and distribution of copyrighted content (Hobbs 2010). This is an important way of ensuring that America supports global efforts to curb piracy of copyrighted materials. The use and abuse of copyrighted contents is an international crime, and no country should support individuals or institutions that promote this vice. Therefore, America shows its support to world treaties by conforming to the standards that regulate digital communication and devices (Library of Congress 2011). This is an important way of helping other countries to curb the problem of copyright infringement and weakening black markets for illegal materials. There is no way America can fight copyright infringement if it does not support or ratify international treaties regarding this aspect. Also, this act enables America to get support from other countries in fighting copyright infringement, and this makes the world a better place for digital communication.
Also, this act has promoted ethical research activities ad ensured researchers do not misuse the products, services, or information about their competitors. There is a need for researchers and America to develop and use sophisticated technologies to ensure there is efficiency in its activities (Bouchoux 2012). However, this does not permit people to use the achievements of others for their selfish gains. This act regulates research and library activities by protecting the rights of innovators and ensuring their products are not altered to serve the interests of others. It also ensures obsolete contents are stored and used for education or research purposes. Advancement in technology is an important aspect, but this does not mean that people should forget where they came from (Library of Congress 2011). Therefore, this act ensures old products and services are protected and stored for future references.
Moreover, this act has provided a vital incentive for the development and expansion of intellectual works. The owners of various copyrighted works enjoy royalties or remunerations when other people use their products or services, and this has motivated people to be creative (Bouchoux 2012). The discovery of competing products and services and the subsequent developments arise when people focus on creating value for their intellectual works. This has challenged people to research to establish the best ways of promoting their products or services. For instance, the act has enabled competing firms to produce and offer different products and services that perform similar functions (Nimmer 2012). This has enabled them to develop the intellectual skills of firms and individuals that specialize in digital communication services and products. Therefore, this act is important in ensuring that new products and services are available in the market to satisfy consumers’ needs. It has encouraged digital communication and entrepreneurship and offered favorable conditions to stimulate intellectual and economic advancements.
Copyright protection acts like the DMCA has offered economic emancipation to thousands of people that have invested in the entertainment industry. Creators of various products and services control their usage, and this becomes a source income to them. The modern world is embracing digital innovations in various ways, and individuals or institutions that have the required skills will benefit from the huge demand offered by consumers (Bouchoux 2012). Artists enjoy their creativity and earn from it because nobody can reproduce, distribute, or sale their productions without informing them. Also, they get good pays when their works are used for commercial purposes or when they are asked to perform on various occasions. Therefore, this act has reduced the problem of unemployment by ensuring that people that have talents earn from their sweat and improve their standards of living. It is necessary to explain that the absence of this act will mean that innovators would not be paid for their efforts, and this would hinder innovation.
Lastly, this act has promoted and supported other laws that recognize the moral rights of individuals. It is important for individuals to be identified and appreciated as the innovators and developers of products or services. This act allows individuals to object to the mutilation of their products or services to ensure they maintain their originality. Also, it helps authors to monitor how consumers use their innovations and get appropriate feedback that offers a platform for further developments of products or services (Crews 2011). It gives authors integrity rights that enable them to object to activities that may modify their works; therefore, it gives them the power to determine the quality and quantity of their creativity.
Failures and Criticism
The DMCA promotes authors and developers of products or services from completion from similar individuals. However, this has led to abuse by various individuals and institutions because they are using this provision to fight their competitors. It is necessary to explain that innovations motivate people to think of how they can improve the quality of existing services and products, and thus, they may develop contents that resemble others (Mableson 2012). Stiff competition for the limited market makes some people and institutions to use this act to compel governments to cancel operating licenses of competitors. This act has been misused to protect the interests of well-developed companies and kill the dreams of upcoming investors. For instance, Google confirmed the misuse of this act in the case of New Zealand’s copyright infringement act (Bouchoux 2012). This company argues that take down notices are usually issued to targeted competing investments.
Cases of invalid copyright claims have increased since the enactment of this policy, and this means that people are misusing it to market their companies instead of developing effective marketing strategies to outdo their rivals (Wilbur 2001). There are fears that if this trend persists businesses will develop other illegal ways of getting at their competitors, and this will not be healthy because it will kill the spirit of healthy competition and innovation. Laura Quilter and her companion Jennifer from California presented that takedown notices issued on competitor companies regarding copyright infringement constitute 57% of the total complaints received by Google. Also, they discovered that more than 37% of these cases were not genuine since they were aimed at stopping competitors from marketing their products or services (Landmark Publication 2013). Therefore, this act has been criticized for promoting illegal claims and unfair business practices.
Also, the establishment of the Analogue Copy Protection act that was approved by the DMCA is a serious blow to academic progress because students cannot use or cite cable sources (Crews 2011). Rovi Corporation was given the sole right of creating the ACP encryption technology that stops the production of content using analog cables. Copies have been destroyed partially or completely when users try to record data using VCR because Rovi’s ACP encryption technology does not permit this to happen. Also, there are many signal and quality issues that arise due to the encryptions developed by various manufacturers to protect their products and services from copyright infringement (Nimmer 2012).
This has compromised the quality of services that consumers get regardless of whether they use legal or illegal ways of accessing or using copyrighted contents. The DMCA allows companies to develop software that adds lines to their products or services, and this makes them ineffective and can damage other products. For instance, the addition of extra lines in recording video cables leads to malfunction of some DVD payers. Therefore, this act gives manufacturers and producers excess freedom to alter their products or services as a measure of protecting them from copyright infringement and forget the impacts of this on genuine consumers.
Moreover, the cryptography community has suffered serious blows after the enactment and implementation of the DMCA. People and institutions are afraid of investing or conducting cryptanalytic research because they are likely to be accused of infringing the DMCA (Landmark Publication 2013). There are no guidelines that determine the difference between violating the DMCA and freedom of research. Therefore, people are not aware of what is right or wrong regarding research in this field, and that is why it continues to puzzle online visitors.
Dmitry Sklyarov (Russian programmer) was arrested in 2001 when he developed a software application that enabled users to crack user restriction contents from eBooks. He was arrested because the DMCA does not permit anybody to develop anti-DRM measures. This act has chilled people from publishing or exposing the flaws that exist in various computer applications. Therefore, the public continues to suffer attacks from cyber criminals because they do not have ideas on how to secure their online accounts and data stored in computers.
Competition between companies and individuals that specialize in the production, supply, and distribution of entertainment contents has been affected by this act (Wilbur 2001). People and companies misinterpret various provisions of this act to suit their interests and make others suffer. Competition between innovators has been affected by ambiguous provisions contained in this act. Some of them have difficulties drawing lines between legal and illegal usage of copyrighted contents.
Therefore, there has been a reduced level of innovation and development of contents that are classified and covered by this act. This makes innovators to take time and spend unnecessary money on research and consultations before developing or improving products and services (Landmark Publication 2013). Therefore, the act has been a serious impediment to innovation and creativity in the digital communication and entertainment industry (Mableson 2012). Critics argue that there are no chances of fast-paced invention and innovation if this act continues to exist and function in its present form.
Theoretical Perspectives
John Locke argues that human beings have inalienable rights, and nobody can deny them this fundamental need. He proposed that people have the right of using their skills to develop and make their societies and lives better. This theory assumes that the society is dynamic and can accommodate various views from people to ensure everybody has access to quality standards. However, his theory contradicts the provisions of the DMCA. First, the act gives patent rights to individuals that are first to register their products, services, brand names, or other aspects of production with relevant authorities. This means that individual that will have similar ideas will not be allowed to use them for their gains because this will be regarded as copyright infringement (Bouchoux 2012). Therefore, this act contradicts Locke’s explanation that people have express permissions to use their inalienable intellectual capacities to benefit their societies and themselves. Also, Locke’s argues that states violate the natural rights of individuals, and this act is an example of how authorities force individuals to forego their freedoms.
Locke argues that people should be left to do what their minds tell them because this is a perfect way of lie., This theory does not support the DMCA because it advocates for people to be allowed to do what they want. However, this act controls an individual’s usage, production, and access to products and services. It does not give people express permission to use products, services, or information for various purposes. The introduction f copyright clauses enable individuals to protect their contests from unauthorized access or use. This is against Locke’s description of perfectness and individuals’ liberty that allows them to do what they want. Lastly, Locke argues that people should unite to protect their wealth and interests. This means that they can establish policies that will protect their interests and enable people to live comfortable. However, this act favors few individuals and protects the rights of those that think they own technology innovations.
Secondly, Aristotle argues that ethics are the pillars of economic emancipation and development and that no society can develop if it does not define its ethical standards. He used several virtues to explain how ethical practices promote social and economic development and gave people equal opportunities to enjoy their lives. He defined courage as the ability to confront evils and resist efforts that promote human suffering. Also, he explained that justice is a requisite aspect if a society wants to develop. People should be given equal opportunities to use their resources to advance their lives.
However, these two issues are not given attention by copyright infringement laws like the DMCA. This law is not just because it discriminates and gives some people privileges to enjoy a monopoly of production, distribution, and access to information, products, and services. Aristotle claimed that social relations are imported in promoting diversification of investments and promotion of activities that utilize the available human and natural resources. These teachings prove that DMCA is an inhumane act because it limits individuals’ use of their talents to improve their lives. Also, it gives few people the opportunities to monopolize the production, access, use, and distribution of contents.
Lastly, John Stuart Mill’s works on utilitarianism and liberty form an important avenue to access the suitability of the DMCA. He proposed that individuals actions are moral if they give them happiness and wrong if they promote pain and suffering. He refers to utilitarianism as an important way of promoting morality in society. His works explain that individuals should focus on what will benefit them and society and avoid things that will make them sad and deprive others their happiness. He refers to happiness as a feeling that motivates people to continue doing what satisfies their egos.
His beliefs are not echoed by the DMCA because it focuses on making a few individuals happy regardless of the restrictions it places on other people and institutions. Secondly, he explained that society has the power to control the activities of an individual, but there should be limits to this to ensure people do not deprive their fundamental rights. His harm principle states that societies can regulate individuals’ actions if there are possibilities that they may interfere with the rights of others. Mill claims that the society or state exercises its power to regulate an individual’s liberty when they threaten the lives of others. Therefore, the DMCA supports his arguments by protecting the rights of manufacturers, authors, and innovators of digital contents.
Recommendations
Acts are usually established to guide the behavior of individuals and ensure they live happily. However, there is the need for the following recommendations to be considered to ensure the DMCA promotes ethical and moral behavior regarding the use of digital devices, services, information, and products. First, there should be clear guidelines that describe the provisions of this act to ensure illegal copyright infringement complains are not made. This will help people to understand this act and apply it appropriately. Secondly, security measures developed by innovators should not bar genuine users from accessing or using the products or services offered by various companies. This will reduce losses and time wastage on irrelevant encryption procedures. Thirdly, America should consider the importance of research and academic advancements that have been impeded by the DMCA. Researchers and students should be allowed to do their work without fears of being arrested for infringing on this act. Moreover, the DMCA should allow competition by flexing this act to allow investors to share, distribute, and use information that will improve the technology and lives of Americans. This will reduce interference with computer intrusion laws and promote fair competition among businesses.
Conclusion
The DMCA was established to regulate the behavior of businesses and individuals regarding the use, distribution, and sharing of digital contents. It protects authors and innovators’ products, services, and contents from unauthorized access, sharing and use and ensures people follow correct channels to acquire their products or services. However, it has some flaws that should be addressed to ensure it promotes fair competition, research, and freedom of expression.
References
Bouchoux, D. (2012). Intellectual Property: The Law of Trademarks, Copyrights, Patents, and Trade Secrets. Connecticut: Cengage Learning.
Crews, K. (2011). Copyright Law for Librarians and Educators. Chicago: American Library Association.
Hobbs, R. (2010). Copyright Clarity: How Fair Use Supports Digital Learning. California: Corwin.
Landmark Publication. (2013). Digital Millennium Copyright Act (Intellectual Property Law Series). Chicago: Landmark.
Library of Congress. (2011). DMCA Section 104 Report: A Report of the Register of Copyrights Pursuant To Section 104 of the Digital Millennium Copyright Act. Michigan: University of Michigan Library.
Mableson, C. (2012). DMCA HANDBOOK for ISPs, Websites, Content Creators, and Copyright Owners. New York: Brooks Publishers.
Mulligan, C. (2012). Copyright Unbalanced: From Incentive to Excess. Arlington: Mercatus Center/George Mason University.
Nimmer, D. (2012). Copyright: Sacred Text, Technology, and the DMCA (Exemplar Juridicum: American Thought on Global Legal Issues). New York: Springer.
Reyman, J. (2012). The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture. London: Routledge.
Wilbur, M. (2001). DMCA: The Digital Millennium Copyright Act. New York: Wiley.