The Digital Millennium Copyright Act (“DMCA”) was intended to update U.S. copyright law for the digital age.  Originally enacted in 1998, the DMCA intended to protect copyright holders from companies who made money by making or selling technology designed to “circumvent” technological protections for copyrighted works.  The classic example would be people who engage in “pirating” movies by allowing consumers to watch them outside of proper distribution channels.

Such piracy carries consequences both criminally and civilly for the party engaged in any commercial activities directed towards piracy, including not just the DMCA but also the Computer Fraud and Abuse Act, and as well as copyright infringement, with criminal penalties available.  The DMCA was intended to discourage such piracy by extending the rights of copyright owners beyond copyright infringement.  The DMCA put the U.S. into accord with similar laws passed by over 50 other countries.

However, there are many complicated issues facing enforcement of the DMCA as technological sophistication increases.  One that has received little attention, both from the public and the Courts, is that the DMCA is increasingly being used by copyright owners against “persons” who are not involved in any profit from such violations.  Section 1201(1)(a) of the DMCA is directed against “persons” who circumvent a technological measure, but lacks the requirement that such “person” be engaged in the “manufacture, import, offer to the public, provide, or otherwise traffic” in such technology as required under Sections 1201(a)(2) or 1201(b) that are specifically directed to “persons” that profit from such circumvention.

Copyright owners can therefore sue people pursuant to Section 1201(a)(1) that merely access the works, which may be available because of the circumvention by another party.  There is no safe harbor in Section 1201(a)(1) for users who are unaware of the circumvention by another party.  Instead, the safe harbor in Section 1201(a)(1) is an ability for Congress, based on the recommendation of the Library of Congress and Register of Copyrights, to adjust exemptions in Section 1201(a)(1) every three years, but only based on situations such as for research, education or criticism, not based on the lack of profit-making intent of the person using the copyrighted work.  Congress has not exempted users who are not involved in profit-making to link it to the prohibited behavior in Sections 1201(a)(2) or (b)(1), which were obviously separate sections of the DMCA.

Statutory damages can be from $200 up to $2500 per act of circumvention.  Damages can be applied even if the work is not copyrighted, as it applies to works that are “subject to copyright”, not works that are actually registered.  Therefore, a person or entity who is found to using a non-copyrighted work not for a profit, can be found liable theoretically.  This poses a problem for innocent users who are unaware that another party may have violated the DMCA, including Sections 1201(a)(2) or (b)(1), and provided the work to the defendant.

While no cases appear to exist finding a person (or entity) liable for merely accessing the work without “trafficking” in a technology or a device intended to circumvent an access control, cases are being brought increasingly against companies, specifically Chinese entities, that may have used such works, including use that may have occurred outside the U.S. but impacted U.S. copyright owners.  Copyright owners rely on the well-known issue of piracy in China to claim that such persons or entities “must” have accessed the works in violation of the DMCA because they did not purchase or license the work from the copyright owner.  Since there is no intent requirement, the defendant must almost prove a negative by affirmatively proving that they did not violate the DMCA.

The copyright owner could even generate DMCA violations itself if it chose to do so by posting circumvention software online, which invites copyright “trolling” if a sale or license of the work, such as a movie, is less than the $200 in statutory damages at the lowest level.  While this is far-fetched, the increase in such allegations under only Section 1201(a)(1) and not the other sections of the DMCA makes this possible.  Until a court deems this not to be a DMCA violation, any consumer or entity is a potential victim despite it not being the intent of the DMCA.