PENALTIES FOR BREACHING DMCA

The Digital Millennium Copyright Act (DMCA) And Illegal Circumvention

To “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” 17 U.S.C. § 1201(a)(3)(A). A technological measure “effectively controls access to a work” if “the measure, in the ordinary course of its operation, requires the application of information, a process or a treatment, with the authority of the copyright owner, to gain access to the work.” Id. § 1201(a)(3)(B). It does not require that it be a strong means of protection. See RealNetworks, Inc. v. Streambox, Inc., 2000 WL 12731 (W.D. Wash. 2000).   For more information on DMCA compliance visit our our page on DMCA Compliance

What Are The Remedies For Breaching The DMCA?

In the event a court believes a third party has circumvented a technology measure of your copyright, there are four basic types of damages available::

• Injunctions;

• Impoundment;

• Damages; and

• Criminal Penalties

Injunctions For DMCA Violation

The DMCA authorizes both preliminary and permanent injunctions. 17 U.S.C. § 1203(b)(1). As with copyright infringement, the suit must be brought in federal district court. Id. § 1203(a). An injunction is a judicial order that restrains a third party from beginning or continuing an action threatening or invading the legal right of another. An injunction would order a third party to cease and desist the acts which lead to the copyright infringement.

Impoundment For DMCA Violation

The DMCA’s provision for impoundment is similar to that for copyright infringement:

"[A]t any time while an action is pending, [the court] may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation."

17 U.S.C. § 1203(b)(2). Because the structure is akin to that for copyright infringement—as opposed to the impoundment provision for counterfeit goods which explicitly authorizes ex parte seizure—to obtain ex parte seizure it is necessary to proceed under to FED. R. CIV. P. 65(b), as described below. Whereas the copyright provision only provides for impoundment of the infringing articles themselves, however, the DMCA allows impoundment of “any device or product . . . that the court has reasonable cause to believe was involved in a violation” (emphasis added). This can be interpreted broadly to include the crabby hacker’s computer and related media. If your materials and technology have been wrongfully misappropriated or used, our Dallas DMCA attorneys can assist your in stopping such wrongful misappropriation and use of your copyrighted material.