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ESC Copyright Information Website: DMCA

What is the Digital Millennium Copyright Act (DMCA)?

Computers and the Internet make it easy and cheap to distribute numerous unauthorized copies of a work, causing economic harm to the copyright owner. The DMCA (a federal law passed in 1998) protects technical barriers to unauthorized copying and gives copyright owners a way to have unauthorized copies taken down that is faster and cheaper than taking infringers to court.

DMCA Safe Harbor

This DMCA takedown has flaws (it can cause websites and courses to disappear temporarily, and lacks due process) but it does have the advantage of being one step that copyright owners have to take before they take an alleged infringer to court. 

The DMCA also limits the college's liability for copyright infringement committed by users (faculty, staff, and students.) Faculty, staff, and students are still personally liable for copyright infringement. Students are subject to the student conduct process. Faculty and staff are subject to disciplinary action pursuant to the applicable collective bargaining agreement.

Avoiding DMCA Take-Downs

To avoid takedowns, faculty and staff should be careful to avoid posting infringing content to the college website, learning management system, or any online presence associated with the college. If infringing content is found, it needs to be promptly removed. Faculty and staff are expected to self-monitor and seek the support of the library, educational technologists, and instructional designers to find alternative access or alternative content. This way we can replace infringing content with something legitimate before a copyright owner issues a takedown notice, which can be more abrupt and disruptive. 

If you notice possibly infringing content put up by someone else, and you feel comfortable doing so, approach the person who posted the content in a collegial and non-confrontational way. Suggest that they Ask a Librarian for help finding a legal way to provide access to the material, or to find alternative materials. 

An alternative is contacting us through Ask a Librarian to work with the person to determine whether the content was posted legally. If it is infringing, we will work with them to find a legal way to provide access to the content or to alternative materials. There will be no negative consequences for you or the other person. 

In the Event of a DMCA Take-Down

If a copyright owner thinks that their content is being infringed upon in any of the college's online spaces, they or their designated agent can send a take-down notice to the college's copyright officer, who is the Vice President for Information Technology.

Here is a summary of how to issue a DMCA notice, and a sample of what the notice looks like, from attorney Sara F. Hawkins.

Once our copyright officer receives the take-down notice, the allegedly infringing content has to be taken down immediately, without investigation. This sometimes results in entire courses or websites being taken down. The owner/maintainer of the affected course or site is notified after the fact. 

If, when that happens, you realize that the content you had up was in fact infringing, all you have to do is remove it from your course or site and work with the copyright officer to have your course or site put back up minus the infringing content. The copyright officer will take care of documenting and notifying the copyright owner. 

You do have the right to then issue a counter notice and put the content back up. However, this can result in a lawsuit and/or criminal copyright charges, so if you want to issue a counter-notice you will need to consult with college counsel and possibly your own lawyer first. (Do not consult a librarian - we are not qualified to give legal advice.) You should also notify your supervisor so they know what's going on.

The Digital Media Law Project provides a summary of how to issue a DMCA counter notice, and a form to fill out that generates the counter notice.

DMCA Anti-Circumvention

Anti-Circumvention

 The DMCA anti-circumvention provision makes it illegal to break or bypass digital rights management technologies (DRM) including:

  • encryption, like region coding on DVDs, which makes it impossible to play a U.S. DVD on a European DVD player
  • password protection, like the passwords used to access our learning management system and the library databases.

It is illegal to circumvent the DRM even if you have the legal right to use the content protected by it. For example, if you have a public-domain film on a region-coded DVD, it is illegal to remove its region coding, even though there is no copyright to infringe. 

The Librarian of Congress periodically rules on specific exemptions to the DMCA. The current exemptions relevant to higher education are:

  • It is legal to bypass the DRM of an e-book so that a visually impaired person can read it, but only if there is not an accessible version of it on the market.
  • Film studies faculty may bypass the DRM on DVDs in order to create clips of their content.