The Digital Millennium Copyright Act (DMCA) of 1998 poses new challenges for institutions like the University of Wisconsin-Milwaukee and a new book examines the legal implications of the legislation on libraries and their user communities.

The DMCA is “not a statute for the faint of heart,” said Tomas Lipinski, co-director of the UWM Center for Information Policy Research. Lipinski’s new book, “The Librarian’s Copyright Liability Handbook,” slated for publication later this year, is “really a complete guide to risk management and copyright liability for schools and libraries,” Lipinski said.

The book says there are two main provisions within the DMCA. The first, section 1201 (17 USC 1201), fulfills the United States’ responsibility to implement the World Intellectual Property Organization treaties.

This portion of the DMCA deals with “the so-called anti-trafficking, anti-circumvention rules,” which give copyright owners protection additional to simple copyright, Lipinski said.

The second and more significant part of the DMCA is section 512 (17 USC 512). Lipinski called these “service provider rules.” These rules grew out of the increasing number of cases heard in the mid-1990s involving copyright intermediaries — “not necessarily someone who did the posting, but someone who ran the Web site … and made the technology available,” Lipinski said.

Such cases exposed these intermediaries to “quite a bit of liability, almost as direct infringers,” Lipinski said. “It started to send shivers down the industry’s spine — no one’s going to want to open themselves up to liability.”

Out of this worry, Congress created a set of rules under which an intermediary — like UWM or the Milwaukee Public Library — could assure themselves that the most harm they would face would be injunctive relief, which is a court-ordered prohibition of a particular action.

Lipinski said, “It really gives (intermediaries) a bit of insurance if they follow these rules.” He noted, however, that following these rules is completely voluntary.

“(Congress) created a complex set of rules,” said Lipinski. “So for a copyright provision, section 512 is pretty ugly.”

The implication of the DMCA, particularly section 512, is that in order to obtain the “safe harbor” the legislation provides, “the statute sets the institution up in the middle purposely and requires that institution … to treat its patrons a certain way,” Lipinski said. “It’s kind of a strong-arm way.”

While institutions of higher education receive some additional protection under the law, the protection comes with additional requirements, like having informational materials available and distributing them to faculty and staff, Lipinski said. “That may sound like a simple thing,” he said, “but we’ve never has anything close to that in the copyright law before.”

Before the passage of the DMCA, it was sufficient enough for the library to place a warning notice near the photocopier.

Now that the DMCA is in place, however, “there’s this push or prod to get institutions to do more,” Lipinski said. “It’s really, I think, a dramatic shift.”

Although it appears that Congress placed a heavy burden on institutions to protect themselves, copyright owners are not in the clear.

“Fortunately, there’s also a provision for … punch-happy copyright owners who start shouting chicken all over the place,” Lipinski said.

Specifically, he said, there is a stipulation that if a copyright owner misrepresents his or her material as protected and an institution or an individual suffers damages because of it, that institution or individual can recover those damages.

Lipinski’s book, intended for an audience of professionals and practitioners in schools and libraries, offers up much of this information and more.

“I think it’s (about) awareness-raising,” he said.

With a dearth of knowledge about the specifics of copyright law and such a complex piece of legislation on the books, Lipinski sees one basic solution to the conflict between copyright holders and university communities.

“It might sound old-fashioned, but I think probably dialogue,” he said. “It seems that when Congress has gotten a hold of things, they’ve really had the ear of the industry.”

“This is not the end of copyright legislation or litigation,” Lipinski said. “Copyright is hot.”

Teachers and students can protect themselves through education.

“This is not a provision that gives any immunity to individuals,” he said. “It certainly does nothing to protect students.”

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