Digital Law Online: Trafficking

Perhaps the most important of the anticircumvention provisions in terms of their actual effect are those outlawing trafficking in circumvention technology. While not required by the WIPO Copyright Treaty, which addresses only actual circumventions, these provisions may be more effective at stopping most unlawful circumventions by limiting the tools available to people than suing a large number of circumventors.

Section 1201(a)(2) deals with trafficking in things that circumvent any “technological measure that effectively controls access to a work” protected by copyright.

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that:

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. {FN141: 17 U.S.C. §1201(a)(2)}

There are a number of terms with special meanings:

(A) 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; and

(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. {FN142: 17 U.S.C. §1201(a)(3)}

Subsection (b) provides prohibition similar to that of Section 1201(a)(2), except for circumvention of a measure that “effectively protects a right of a copyright owner,” rather than “effectively controls access to a work.”

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof. {FN143: 17 U.S.C. §1201(b)(1)}

And again, similar definitions for the special terms:

(A) to “circumvent protection afforded by a technological measure” means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and

(B) a technological measure “effectively protects a right of a copyright owner under this title” if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title. {FN144: 17 U.S.C. §1201(b)(2)}

The technological measure does not need to be flawless in its protection in order to be protected. Instead, the provisions are intended to protect mechanisms that are simple, like the Audio Home Recording Act’s Serial Copy Management System, which uses only two bits of control information (one to indicate it is a work to be protected, the other indicating that it is an original copy) but is effective since there are no legal digital audio recording devices that don’t honor the system.

The practical, common-sense approach taken by H.R. 2281 is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work, or to control copying, distribution, public performance, or the exercise of other exclusive rights in a work, then the “effectiveness” test is met, and the prohibitions of the statute are applicable. This test, which focuses on the function performed by the technology, provides a sufficient basis for clear interpretation. It applies equally to technologies used to protect access to works whether in analog or digital formats. {FN145: H.R. Judiciary Comm. Print 105-6 at 10}

Congress indicated that even a simple password control could be an effective technological measure.

For example, if unauthorized access to a copyrighted work is effectively prevented through use of a password, it would be a violation of this section to defeat or bypass the password and to make the means to do so, as long as the primary purpose of the means was to perform this kind of act. {FN146: Sen. Rep. No. 105-190 at 11}

In fact, there is no need to protect a technological measure that is so good that it cannot be circumvented. Instead, you want to use the law to allow technological measures that are simple and inexpensive. As an analogy, imagine what your home doors would look like if there were no laws against burglary and you had to use only technology to protect your new, big-screen television. Instead, because there is a law against “circumventing” a locked door, most people get by with an inexpensive lock, even though an expert could open it with little difficulty.

Not requiring perfect access controls also eliminates a problem that could hurt the adoption of new technologies such as DVDs. Assume that the original DVDs used a protection mechanism that was uncrackable at the time they were introduced. Then, at some later time, a way to crack the protection mechanism is discovered. If there is no law against trafficking in the circumvention method, the only way for content producers to continue to protect their works is to go to a new protection mechanism for the works sold in the future. But that means that people who bought original DVD players will not be able to play the new works, since they are protected with a different mechanism. They would have to purchase a new player (or pay for an upgrade to their existing player) to play the new works. Although this continual obsolescence might seem wonderful for DVD player manufacturers, it is more likely that people would simply not buy a DVD player if they thought that it would play only past releases and not new movies.

Just because somebody constructs or distributes something that could circumvent a protection method does not mean that he or she has violated the trafficking provisions. The “technology, product, service, device, component, or part thereof” must fall into one of three categories before there is a violation.

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

This mean that, for example, a disk block editor that can change any bits stored on a hard disk would not normally be a circumvention device because it was written to help with disk administration and repair and not primarily for circumvention. But if somebody starts selling the disk block editor by saying how it can be used to circumvent a protection mechanism, that would run afoul of (C).

The “primarily designed or produced” and “only limited commercially significant purpose or use” tests are different from the “substantial noninfringing use” that the Supreme Court stated in its 1984 Sony v. Universal City Studios decision. {FN148: 464 U.S. 417, 220 USPQ 665 (1984)}

In that case, because there were no statutory contributory or vicarious infringement provisions in the Copyright Act, the Supreme Court imported the ones from the patent statute.

If vicarious liability is to be imposed on petitioners in this case, it must rest on the fact that they have sold equipment with constructive knowledge of the fact that their customers may use that equipment to make authorized copies of copyrighted material. There is no precedent in the law of the copyright for the imposition of vicarious liability on such a theory. The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law. {FN149: 464 U.S. at 439, 220 USPQ at 677}

The patent act specifically recognizes inducement of infringement {FN150: 35 U.S.C. §271(b)} and contributory infringement. {FN151: 35 U.S.C. §271(c)} For contributory infringement, all that is necessary is the selling of a component of the patented invention that is “not a staple article or commodity of commerce suitable for substantial noninfringing use.” This would include, for example, the standard electronic parts that might be used to construct a patented device.

We recognize there are substantial differences between the patent and copyright laws. But in both areas the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. {FN152: 464 U.S. at 442, 220 USPQ at 678}

The problem with using this standard for the trafficking provisions is that there is almost always a substantial noninfringing use because fair use generally permits the quotation of limited portions of a copyrighted work in a new work. Patent law does not have a comparable fair use provision, so its criteria for contributory infringement don’t have the loophole that exists when the same criteria is applied to copyrighted works.

Instead, Congress explicitly stated the criteria to be considered when deciding whether a person is trafficking in a circumvention device or is promoting a legitimate product, so it is not necessary to import tests from the patent laws that may be questionable for determining whether something that can be used to circumvent a protection measure has other uses that should allow its distribution.

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