Digital Millennium Copyright Act celebrates a quarter century of takedown notices

It has been 25 years since the Digital Millennium Copyright Act (DMCA) was signed into US law by President Bill Clinton, ushering in an era of intellectual property (IP) protection for all. Or that was the hope.

The DMCA has its basis in treaties passed in 1996 by the World Intellectual Property Organization aimed at dealing with copyright in the age of the internet. As well as heightening the penalties for copyright infringement on the web, it also criminalized technology designed to circumvent measures to control access to copyrighted works.

Notably, it also exempted internet service providers (ISPs) from liability if their customers used those services for purposes deemed nefarious in the eyes of the law.

While the DMCA continues to cast a long shadow over the tech world, it is also a relic of its time. Back then, Internet Explorer 4 was still the primary web browser for many users, and the initial version of Napster – an infamous peer-to-peer file-sharing application – was on the eve of its general release.

Into this heady world of innovation stumbled the DMCA, with perhaps the best of intentions but not the greatest of executions.

There is no doubt DMCA takedowns were initially a handy tool for the removal of copyrighted materials, although the explosive growth of services such as YouTube can make the process somewhat onerous. It was, however, the anti-circumvention provisions – intended to shore up anti-piracy technology – that continue to see heavy-handed use.

According to the Electronic Frontier Foundation (EFF) [PDF]: "Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors."

Several large tech companies did indeed make use of the legislation over the years to threaten rivals and hobbyists that modify technology.

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However, looking back on a quarter of a century under the DMCA, it is clear the legislation is more significant for what it doesn't do rather than what it does. Its exemptions meant the companies that came in its wake – including Facebook, YouTube, and Twitter X – have been able to use content creators to their benefit and collect personal information for marketing purposes.

While the DMCA is a US law, lawmakers around the world have grappled with regulatory questions posed by changes in technology over the years. As such, the DMCA is ripe for a revisit.

So, a good thing or a bad thing? The DMCA is a valuable tool for fighting off copyright infringement yet it also has the potential to stifle innovation and fair use. It has been amended over the years to address concerns and criticisms. However, one cannot escape the feeling that it is in need of modernization. ®