Cybertelecom Federal Internet Law & Policy An Educational Project

IP: DMCA: Crypto & CMI : Enforcement

There are both civil and criminal remedies available for violations of the Anticircumvention and the Content Management Information provisions, Section 1201 and 1202.

Civil Remedies:

Individuals claiming to be victims of violations of the DMCA may seek the following damages in federal court: [17 U.S.C. § 1203]

• Equitable damages resulting in an injunction against the offending activity (cannot result in a prior restrain on free speech); [17 U.S.C. § 1203(b)(1)]
• Impounding, alteration, or destruction of the offending device;
• Monetary damages in either the form of [17 U.S.C. § 1203(c)]
• Actual damages or
• Statutory damages "in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service" and
• Costs and attorney's fees for the prevailing party (you have to be successful in the lawsuit - a settlement is not prevailing in the lawsuit).

Bad guys violating the DMCA again and again can be subject to treble damages. [17 U.S.C. § 1203(c)(4)] Damages can be reduced or eliminated where "the violator was not aware and had no reason to believe that its acts constituted a violation" (in the case of a nonprofit library, archives, educational institution, or public broadcasting entity, the damages shall be eliminated where "the violator was not aware and had no reason to believe that its acts constituted a violation"). [17 U.S.C. § 1203(c)(5)]

Criminal Remedies:

The government can prosecute individuals who violate Sections 1201 or 1202 "willfully and for purposes of commercial advantage or private financial gain." Convicted individuals may be

• "fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and"
• "fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense." [17 U.S.C. § 1204(a)]

Nonprofit libraries, archives, educational institutions, or public broadcasting entities are immune from criminal prosecution. [17 U.S.C. § 1204(b)]

Statute of Limitations:

Cases must be initiated within five years of the complained of activity. [17 U.S.C. § 1204(c)]

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