Table of Contents:

Introduction to the online version


Preface to the printed version

Copyright Overview

Software Copyright

Digital Copyright

- Why Digital Works are Different

- A Bad Fit

- Protecting Digital Information

- What Not to Protect

- DMCA Safe Harbors

   - Notice and Takedown and Putback

   - Mere Conduits

   - Caching

   - Stored Information

   - Directories

   - Other Safe Harbor Requirements

   - Special Rules for Schools

- Protection Through Technology

- DMCA Technological Protections

   - Trafficking

   - Accessing

   - Distinction From Copyright

   - Rights Management

   - Permitted Circumventions

   - Reverse Engineering

   - Encryption Research

   - Code as Speech

   - Security Testing

Patent Overview

Software Patents

Full treatise table of contents

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Chapter 3: Copyright of Digital Information

IV.E.2. Accessing Through Circumvention

Unlike Section 1201(b), {FN153: 17 U.S.C. §1201(b)} which forbids trafficking in devices used to infringe one of the copyright owner’s exclusive rights, Section 1201(a)(2) {FN154: 17 U.S.C. §1201(a)(2)} is directed at trafficking in devices used to access a work protected by a technological measure. But since there was no prohibition against such access, and it would be strange to prohibit the distribution of a device that doesn’t perform an illegal activity, Congress created a new violation as Section 1201(a)(1):

No person shall circumvent a technological measure that effectively controls access to a work protected under this title. {FN155: 17 U.S.C. §1201(a)(1)(A)}

Until then, it had not been illegal to access a copyrighted work as long as there was not an infringement associated with that access. One could access the information in a book by reading it without infringing the copyright on that book.

The prohibition against trafficking in a device to circumvent an access control seemed to Congress necessary to prevent a huge loophole in the anticircumvention provisions that would allow the distribution of circumvention devices that contained a warning against using them for copyright infringement, even though that would be the likely result. Any effectiveness of the anticircumvention provisions comes from preventing circumvention devices or programs from being readily available to non-technical people in a way that seems to legitimize them, not from stopping every circumvention device.

The creation of what is essentially a new right of copyright owners to control access to technology-protected works is not completely divorced from existing copyright law. Digital works are different from traditional copyrighted works in that intermediate copies are often required to see or hear the work. If a work is encrypted as part of a technological protection mechanism, then it is likely that an intermediate plain-text copy of the protected work will be created. And that intermediate copy stored in the memory of the computer used to access the work infringes the reproduction right {FN156: See MAI v. Peak, 991 F.2d 511, 26 USPQ2d 1458 (9th Cir. 1993)} if it is without the authorization of the copyright owner and not permitted by law.

But Congress was also concerned that people might take advantage of the inability to access material that is protected by a technological measure to improperly protect material. For example, a content provider might add a small copyrighted portion to a work in the public domain, such as a capsule description to a court decision, and protect the whole thing with an access control system. Any access would be a violation of Section 1201[a][1](A), {FN157: 17 U.S.C. §1201(a)(1)(A)} and would also be technologically impossible for most people because the trafficking provision of Section 1201(a)(2) {FN158: 17 U.S.C. §1201(a)(2)} means that there would be no ready source of tools to get around such a technological measure.

Congress addressed this in two ways. First, it provided a number of exceptions to the provisions against access and trafficking to address particular circumstances where it felt that the public good would be served. Second, it provided for a procedure, detailed in Section 1201(a), by which the Librarian of Congress could exempt certain classes of works from the circumvention ban.

Given the threat of a diminution of otherwise lawful access to works and information, the Committee on Commerce believes that a “fail-safe” mechanism is required. This mechanism would monitor developments in the marketplace for copyrighted materials, and allow the enforceability of the prohibition against the act of circumvention to be selectively waived, for limited time periods, if necessary to prevent a diminution in the availability to individual users of a particular category of copyrighted materials. {FN159: H.R. Rep. No. 105-551 part 2 at 36}

The factors to be considered by the Register of Copyrights, who makes a recommendation to the Librarian of Congress after consultation with the Assistant Secretary for Communications and Information of the Department of Commerce, are

(i) the availability for use of copyrighted works;

(ii) the availability for use of works for nonprofit archival, preservation, and educational purposes;

(iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;

(iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and

(v) such other factors as the Librarian considers appropriate. {FN160: 17 U.S.C. §1201(a)(1)(C)}

Classes of works are exempted by the Librarian of Congress for a three-year period, and there is a new review every three years. The ban on using circumvention devices (but not their distribution) was delayed for two years (until October 28, 2000), to allow for the first review.

In July 2010, the fourth cycle completed with the following exemptions:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i)  Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i)  The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.  A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

It must be remembered that the exemptions are only for the circumvention of an access control mechanism covered by section 1201(a)(1). It does not provide an exemption for the provision of a tool used for such circumvention, which could be a violation of section 1201(a)(2), nor for circumvention that results in infringement, which would be a violation of section 1201(b).

For more information about these exemptions, and the proceedings leading up to them, see:

Next section: Distinction From Copyright

Copyright © 2002, 2010, Lee A. Hollaar. See information regarding permitted usage.