US Copyright Directive [4.4.3]
In the United States, Title I of the Digital Millennium Copyright Act (DMCA)1 prohibits the sale, manufacture or offer for sale of any technology that enables users to circumvent the encryption of copyrighted materials. The DMCA expands the scope of traditional copyright laws to prohibit: (a) gaining unauthorized access to works by circumventing certain technological measures put in place to limit access to such works; (b) tampering with copyright management information; and (c) any party from manufacturing, offering to the public, providing, importing or otherwise trafficking technology that is designed for or enables users to circumvent access or copy control measures.2 In addition, a website provider is generally not allowed to use third-party content on its website without permission from the third-party content provider, nor can it exploit the software used for a website by licensing the software to third parties since any unauthorized use of software protected by copyright and/or patent rights is not permissible without the relevant owner’s prior consent. However, Title II of the DMCA provides ISPs with broad protections for the unknowing transmission or storage of copyrighted material without authorization if the ISPs meet certain criteria and take specific remedial actions.3 ISPs are also given immunity from liability under the DMCA when they provide hypertext links to infringing materials or store infringing materials at a user’s request if: (a) the ISP has no actual knowledge that the material infringes a copyright; (b) is not aware of facts or circumstances from which infringing activity is apparent; and does not “receive a financial benefit directly attributable to the infringing activity, in a case where the service provider has the right and ability to control such activity.4” In order to benefit from the “safe harbor” provision of the DMCA, the ISP is required to remove or disable access to any linked, stored or cached material when it receives a written notification of a claimed infringement.5
1 Digital Millennium Copyright Act (DMCA), Public Law 105-304, October 28, 1998.
2 E-Commerce in 20 jurisdictions worldwide, Law Business Research, 2002 (Chapter 19 – USA, John Kennedy from Morrison & Foerster).
3 Id. For example, the DMCA provides that ISPs do not commit copyright infringement when they cache, transmit, route or provide “intermediate and transient storage” for information provided by their customers or other persons if the ISP did not initiate the transmission or routing, did not select the recipients of the material and did not modify the material’s contents.
4 Id. DMCA Title II, Section 512.