Amazon Sellers and the DMCA
There are several landmark lawsuits and other legal events that are alarmingly significant to Amazon sellers – especially when it comes to intellectual property. One of these that is particularly relevant to Amazon sellers is the DMCA, or Digital Millennium Copyright Act, which implemented several laws that pertain to e-commerce and internet IP law.
Knowing what constitutes copyright infringement or other IP violation has become vital for Amazon Sellers. Unfortunately, far too many sellers continue to throw these terms around without understanding precisely what they mean. This adds up to a dangerous situation. Although sellers might not want to hear how badly Amazon has them tied down with Intellectual Property laws, it’s crucial.
What is the DMCA?
The DMCA is an amendment to Title 17 of the U.S.C. It imposes new copyright laws that criminalize any attempt to bypass control points of copyrighted works, along with its production or distribution. The DMCA was implemented to strengthen legal penalties for copyright infringement, specifically those that occur on the internet.
The Digital Millennium Copyright Act was passed by a unanimous vote from the US Senate on October 12th, 1988 under President Bill Clinton. The DMCA combines two significant clauses of the WIPO, or World Intellectual Property Organization:
1. Criminalizes the production and circulation of any device, software or other means of attempting to circumvent access control points to copyrighted works.
2. Criminalizes any action of circumventing these access control points, regardless of whether an actual copyright infringement occurs.
3. The DMCA also imposes stricter penalties for those who infringe upon copyrights via the internet. These penalties are outlined in the DMCA.
OCILLA Section Provides Hidden Benefits for ISPs
Many sellers have used the DMCA as a reference in cases of intellectual property violations and related Amazon account suspensions, but here’s what many sellers don’t realize: the Online Copyright Infringement Liability Limitation Act, or (OCILLA) portion of the DMCA works in favor of Amazon. How does it manage to grant Amazon even more power? The OCILLA section of the DMCA broadens the definition of an Internet Service Provider. Furthermore, it implements a multitude of exemptions for ISPs. These exemptions place less liability on the ISP when copyright infringement occurs.
The OCILLA Section 512 (k)(1) expands the definition of what constitutes an ISP, and it goes on to state that that marketplace, chat apps and services, social networks and other “intermediaries” with an abundance of users are limited to what types of user behavior they can control. Essentially, the DMCA gives Amazon a free pass to remain neutral whenever a seller infringes upon another seller’s copyright.
New Standards for Internet Service Providers
The OCILLA section, or section 512(k)(1), expands the legal term “online service” in these two sentences:
(A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefore, and includes an entity described in subparagraph (A)
These two clauses together alter and broaden what constitutes an Internet Service Provider. This deems all channels of online products or services, including Amazon, legally exempt from liability when its users infringe on the copyright of another. Therefore, any service provider of online goods or services, like Amazon, has limited responsibility for what its users do. Essentially, Amazon is a marketplace — nothing but a middle ground on which buyers and sellers can connect.
The OCILLA section recognizes that methods of controlling user behavior are increasingly difficult for ISPs to impose. This is understandable when users can act freely, passing products and any other form of content through the ISP without modification – i.e., buying and selling products on Amazon. The wording is vague enough to expand the legal definition of an ISP, and as a result, all ISPs benefit legally by having the ability to simply remove themselves from any legal situations that arise amongst sellers.
The DMCA on a Global Scale
Applicable European versions of the DMCA include the Electronic Commerce Directive, passed in 2000 across the EU, as well as the Copyright Directive in 2001 which implemented the WIPO Copyright Treaty of 1996.