Digital Law Online: Accessing

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.

During the first review, the Librarian of Congress received comments from the public and determined that two classes of works should be exempted from the prohibition against the use of circumvention devices:

1. Compilations consisting of lists of websites blocked by filtering software applications; and

2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence. {FN161: Recommendation of the Register of Copyrights and Determination of the Librarian of Congress, 65 Fed. Reg. 64555 (October 27, 2000)}

During the second rulemaking cycle, these two exemptions were refined and two new exemptions were added:

(1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.

(2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

(4) 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 of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

Three definitions were also added:

(1) “Internet locations” are defined to include domains, uniform resource locators (URLs), numeric IP addresses or any combination thereof.

(2) “Obsolete” shall mean “no longer manufactured or reasonably available in the commercial marketplace.”

(3) “Specialized format,” “digital text” and “authorized entities” shall have the same meaning as in 17 U.S.C. §121.

During the third rulemaking cycle, which concluding in November 2006, one of the previous exemptions remained essentially unchanged, two had limiting language added, and one was dropped. Although the exemption for compilations of blocked Internet locations was one of the original two exemptions and continued in a more restricted form in the second round, the proponents of the exemption made no factual showing in the third round that the exemption was still necessary nor that the exemption had been used.

The fourth exemption remains essentially the same.

4. 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 books read-aloud function or of screen readers that render the text into a specialized format.

What had previously been the second exemption is now the third, with a definition of when a dongle becomes obsolete added.

3. 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.

What had previously been the third exemption is now the third, but is now limited to preservation and archival activities only.

2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Finally, three new exemptions were added.

1. Audiovisual works included in the educational library of a college or universitys film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

In the past, the Copyright Office has restricted the exemptions to particular classes of works, rather than particular uses, as it felt the statute required. This time, both exemptions 1 and 2 further restrict a class of works to a particular use. And 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: http://www.copyright.gov/1201/