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Perhaps no part of the DMCA has been in the headlines more or been more controversial than the circumvention prohibitions. Section 1201 of the DMCA prohibits circumvention of technological protections of copyrighted content. In other words, if a copyright owner puts a technological lock around material (no matter how strong or weak [RealNetworks]), it is illegal to take an cyber hacksaw to that lock and open up that content.

It is a bad thing to

  • circumvent access protections to content, [17 U.S.C. § 1201(a)&(b)] [Pearl Investments] or
  • manufacture or make available things that circumvent the protections.

Does a particular product constitute a bad thing? If the content you desire is only available in MS Windows, and you make a thing that makes it available using Linux, is that thing bad? The DMCA guidance is that "things" are prohibited where

  • "they are primarily designed or produced to circumvent;
  • they have only limited commercially significant purpose or use other than to circumvent; or
  • they are marketed for use in circumventing."

[Copyright Office page 4] This of course leads to the interesting question of whether circumvention could be build as a minor feature to another device where the primary purpose of the larger device is something else, such as, say, mixing margaritas. At any rate, courts have found that Real Media VCRs, third party toner cartridges, Mod Chips, and DVD cracker programs all violate this provision.

Note that, according to the statute, neither intent nor proof of actual copyright infringement is relevant [Reimerdes] (although one litigation suggests that intent is relevant [Sklyarov]). The making of a device is illegal regardless of whether the builder intends copyright infringement or ever actually engages in infringement. It appears to be the implicit assumption of the DMCA that the existence of circumvention technology in a digital era is directly correlated to infringement (it has been suggested that these provisions are akin to outlawing crowbars in order to prevent burglary). [Reimerdes Appeal]

Note also that this is not a mandate to use technological protections. Copyright owners are not obliged to use technological protection if they do not want to - except with regard to analog videocassette recorders. [17 U.S.C. § 1201(k)]

In theory, these provisions change nothing about the copyright laws including potential liability and possible defenses, such as fair use. Of course, one's ability to take advantage of fair use may be impacted where one lacks access to the content in question and cannot break digital locks to gain access (it is hard to show a clip of a movie in a class where the copy prevents such presentations). [17 U.S.C. § 1201(c)]

| Breaking Crypto | Exceptions | Enforcement |

Law

  • 17 United States Code Sec. 1201
  • Code of Federal Regulations, Title 37, Sec. 201.40 Exemption to prohibition against circumvention.

Government Activity

"The Digital Millennium Copyright Act, Public Law 105-304 (1998), added a new Chapter 12 to title 17 United States Code, which among other things prohibits circumvention of access control technologies employed by copyright owners to protect their works.  Specifically, section 1201 provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."  This prohibition on circumvention becomes effective on October 28, 2000." LOC Website.

DMCA "creates criminal penalties for circumventing a copyright protection system and prohibits the manufacture, import, sale or distribution of devices or services used for such circumvention.  The statute exempts circumvention for security testing or encryption research." -- President's Working Group on Unlawful Conduct on the Internet, The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet, Appendix I (March 2000) <www.usdoj.gov/criminal/cybercrime/append.htm>

US Copyright Office, The Digital Millennium Copyright Act of 1998 (Dec. 1998).

Reports

Report to Congress: Joint Study of Section 1201(g) of The Digital Millennium Copyright Act. The first study examined "the effect that the exemption for encryption research has had on encryption research, the development of encryption technology, the adequacy and effectiveness of technological measures designed to protect copyrighted words, and the protection of copyright owners against unauthorized access to their encrypted copyrighted works." The Report concluded that there has been no adverse impact on encryption research

Cases and Controversies

OPG, Pavlosky & Smith v. Diebold

US v. John Doe

re: the creation of mod chips for the x box. Stanford Cyberlaw Clinic

Slashdot v MS

Universal City Studios, Inc. v. Reimerdes, 11 F.Supp. 294, 324 n.170 (2000), aff'd 273 F.3d 429 (2nd Cir. 2001)

"[A] piece of technology might have a substantial noninfringing use, and hence be immune from attack under Sony's construction of the Copyright Act -- but nonetheless still be subject to suppression under Section 1201. Indeed, Congress explicitly noted that Section 1201 does not incorporate Sony."

Gallery of CSS Descramblers by Dr. David S. Touretzky, Computer Science Department, Carnegie Mellon University (includes links to and analysis of the case)

DVD-CCA v McLaughlin

Lexmark International, Inc., v. Static Control Components, Inc. , Civ. Act. No. 02-571-KSF (ED KE Feb. 27, 2003 )

Static Control made toner cartridges that worked on Lexmark's printers. In order to achieve this, Static Control developed a microchip that deceived the Lexmark Printer's authentication technology into thinking that the Static Control cartridge was a legitimate cartridge, and gave it access to copyrighted printer programs.

The Court agreed with Lexmark that this violated the DMCA's prohibitions against manufacturing and making available circumvention technology.

The Court also held that Static Control did not fall within the reverse engineering safe harbor exemption; the exemption, the court clarified, is "for the purpose of permitting interoperability of an independently created program with other programs." Static Control merely defeated the authentication regime and then replaced a Lexmark cartridge with a Static Control cartridge with an infringing copy of Lexmark's toner software.

Pearl Investments, LLC v. Standard I/O, Inc., 257 F.Supp.2d 326 (D.Me. 2003)

Tunneling through virtual private network to gain access to developer's data constitutes potential violation of DMCA anticircumvention provision.

Prof Edward Felten v RIAA

RealNetworks, Inc. v. Streambox, Inc., (WD Wash Jan. 18, 2000):

Streambox made a product that recorded Real Media streams for later play back (sort of a Real Media VCR). Real Networks brought suit claiming device violated anticircumvention provisions of DMCA by fooling the Real Networks server into thinking that it was a legitimate Real Networks device and then ignoring the Copy Switch which preventing copying. Court rule in favor of Real Networks, enjoining defendant's manufacture and distribution of product.

Court rejected defendant's argument that its product did not constitute a violation of the DMCA because Plaintiff's effort to stop copying did not "effectively protect" against unauthorized infringement. The only question the court considered was whether there was a technological protection, not whether it was effective.

Universal City Studios, Inc. v. Reimerdes, 82 F.Supp.2d 21 (SDNY Feb. 2, 2000 )

Court enjoined defendant from further distributing on the 2600 website DeCSS, a program that breaks the encryption protection of DVDs.

"In this case, plaintiffs do not allege that defendants have infringed their copyrights, but rather that defendants offer technology that circumvents their copyright protection system and thus facilitates infringement. For purposes of the irreparable injury inquiry, this is a distinction without a difference. If plaintiffs are correct on the merits, they face substantially the same immediate and irreparable injury from defendants' posting of DeCSS as they would if defendants were infringing directly. Moreover, just as in the case of direct copyright infringement, the extent of the harm plaintiffs will suffer as a result of defendants' alleged activities cannot readily be measured, suggesting that the injury truly would be irreparable."

MPAA v Reimerdes

Sony Computer Entertainment, Inc. v. Gamemasters, 87 F.Supp.2d 976 (N.D. CA 1999)

  • Defendant Game Enhancer (aka "mod chip") permits users of Sony's Playstation to play games not sold in the US market and alter the way in which games play (i.e., making games harder or easier by adding lives or ammunition to players). Court held that defendant's game enhancer was designed to circumvent Sony's technological protections controlling access to the game system and thus violated the DMCA.

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