Transcript Slide 1

Regulatory and Judicial
Developments Regarding the
DMCA’s Anticircumvention
Provision -- 17 U.S.C. § 1201(a)
David O. Carson
General Counsel
United States Copyright Office
Fordham Conference on
Intellectual Property Law & Policy
April 28, 2011
New York
§ 1201 Rulemaking
17 U.S.C. § 1201(a)(1)(A) Circumvention of
copyright protection systems:
• No person shall circumvent a technological
measure that effectively controls access to
a work protected under this title….
17 U.S.C. § 1201(a)(2)
• No person shall manufacture, import, offer to the
public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof,
that
• [is primarily designed
circumventing protection
or produced for the
afforded by a
purpose of]
technological measure
• [or has only limited
that effectively controls
commercially
significant purpose or
access to a work
use other than]
protected under this title.
• [or is marketed for use
in]
17 U.S.C. § 1201(b)(1)
• No person shall manufacture, import, offer to the
public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof,
that
• [is primarily designed
circumventing protection
or produced for the
afforded by a
purpose of]
technological measure
• [or has only limited
that effectively protects a
commercially
significant purpose or
right of a copyright owner
use other than]
under this title in a work
• [or is marketed for use
or a portion thereof.
in]
§ 1201 Rulemaking
§1201(a)(1)(B)
The prohibition contained in subparagraph (A)
shall not apply to persons who are users of a
copyrighted work which is in a particular class of
works, if such persons are, or are likely to be in
the succeeding 3-year period, adversely affected
by virtue of such prohibition in their ability to make
noninfringing uses of that particular class of works
under this title, as determined under
subparagraph (C).
§ 1201 Rulemaking
§1201(a)(1)(C):
During the 2-year period described in subparagraph
(A), and during each succeeding 3-year period, the
Librarian of Congress, upon the recommendation of the
Register of Copyrights, who shall consult with the
Assistant Secretary for Communications and Information
of the Department of Commerce and report and
comment on his or her views in making such
recommendation, shall make the determination in a
rulemaking proceeding on the record for purposes of
subparagraph (B) of whether persons who are users of a
copyrighted work are, or are likely to be in the
succeeding 3-year period, adversely affected by the
prohibition under subparagraph (A) in their ability to
make noninfringing uses under this title of a particular
class of copyrighted works.
§1201 Rulemaking
The Librarian shall publish any class of copyrighted
works for which the Librarian has determined,
pursuant to the rulemaking conducted under
subparagraph (C), that noninfringing uses by
persons who are users of a copyrighted work are, or
are likely to be, adversely affected, and the
prohibition contained in subparagraph (A) shall not
apply to such users with respect to such class of
works for the ensuing 3-year period.
§1201(a)(1)(D)
Designated Classes
July 27, 2010
Motion Picture Excerpts
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
Motion Picture Excerpts
Noncommercial, transformative users have also sufficiently
demonstrated that certain uses require high quality in
order for the purpose of the use to be sufficiently
expressed and communicated. …One particular example
of “bringing the background to the foreground” was
demonstrated in the vid, How Much Is That Geisha In he
Window, …. This vid criticizes and comments upon Joss
Whedon’s science fiction television series Firefly. The
series incorporates Asian culture and art, but the vid
demonstrates that almost no Asian characters are
featured and that they appear only in the background.
The vid concludes with a text screen that states: “There
is only one Asian actor with English dialogue in all of
Firefly” and in the next screen states, “She plays a
whore.”
-- Register’s Recommendation, p. 66
“Jailbreaking”
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.
17 U.S.C. 117
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer
program to make or authorize the making of another
copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an
essential step in the utilization of the computer program
in conjunction with a machine and that it is used in no
other manner, or
(2) that such new copy or adaptation is for archival
purposes only and that all archived copies are destroyed
in the event that continued possession of the computer
program should cease to be rightful.
Cellphone Network Switching
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.
Video Games/Security Flaws
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
[See 17 U.S.C. 1201(j) (security testing of computer,
computer system, or computer network)]
Dongles
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.
eBooks / Visually Impaired
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.
Judicial Developments
Federal Circuit Precedent
• Chamberlain v. Skylink, 381 F.3d 1178 (Fed. Cir.
2004)
– Plaintiff must demonstrate a nexus to infringement
— i.e., that the defendant’s trafficking in
circumventing technology had a “reasonable
relationship” to the protections that the Copyright
Act affords copyright owners.
– Defendants whose circumvention devices do not
facilitate infringement are not subject to § 1201
liability.
• Storage Tech. Corp. v. Custom Hardware Eng’g, 421
F.3d 1307 (Fed. Cir. 2005).
MGE UPS Sys. v. GE Consumer & Indus.
612 F.3d 760, withdrawn and superseded in part on rehearing,
622 F.3d 361 (5th Cir. 2010) (“MGE I”)
MGE I
• “Merely bypassing a technological protection
that restricts a user from viewing or using a work
is insufficient to trigger the DMCA’s anticircumvention provision. The DMCA prohibits
only forms of access that would violate or
impinge on the protections that the Copyright Act
otherwise affords copyright owners. See
Chamberlain Group, Inc. v. Skylink Techs., Inc.,
381 F.3d 1178, 1202 (Fed. Cir. 2004).”
MGE UPS Sys. v. GE Consumer & Indus.
612 F.3d 760, withdrawn and superseded in part on rehearing,
622 F.3d 361 (5th Cir. 2010) (“MGE I”)
MGE I
• “Without showing a link between ‘access’
and ‘protection’ of the copyrighted work,
the DMCA’s anti-circumvention provision
does not apply. The owner’s technological
measure must protect the copyrighted
material against an infringement of a right
that the Copyright Act protects, not from
mere use or viewing.”
MGE UPS Sys. v. GE Consumer & Indus.
612 F.3d 760, withdrawn and superseded in part on rehearing,
622 F.3d 361 (5th Cir. 2010) (“MGE I”)
MGE I
• “MGE has not shown that bypassing its dongle infringes
a right protected by the Copyright Act.”
– The dongle “merely prevents initial access to the
software.”
– Dongle does not prevent the literal code or text of the
software from being freely read and copied once
access has been obtained.
– There is no encryption or other form of protection “on
the software itself to prevent copyright violations.”
• “Because the dongle does not protect against copyright
violations, the mere fact that the dongle itself is
circumvented does not give rise to a circumvention
violation within the meaning of the DMCA.”
MGE UPS Sys. v. GE Consumer & Indus.
Petition for Rehearing
Amicus Brief of United States
• “The United States respectfully urges the Court to
grant panel rehearing and revise its opinion to omit
its unnecessary discussion of the types of ‘access’
prohibited by 17 U.S.C. § 1201(a)(1).”
• “The panel’s decision threatens to frustrate
Congress’s purpose in section 1201(a)(1), which
was to provide a federal prohibition against
bypassing passwords, encryption, and other
technologies that regulate access to a copyrighted
work in circumstances in which the copyright owner
would not otherwise have a remedy under the
Copyright Act.”
…
MGE UPS Sys. v. GE Consumer & Indus.
Petition for Rehearing
Amicus Brief of United States
• “The panel’s decision is of particular concern to the
United States, moreover, because it essentially renders
pointless the administrative authority that Congress
granted to the Librarian of Congress under the DMCA to
promulgate exemptions to Section 1201(a)(1)’s anticircumvention prohibition.”
• “The plain language of section 1201(a)(1)(A) thus
restricts any unauthorized access to a copyrighted work
that is protected by an access control, just as breakingand-entering laws prohibit any access to a locked house,
even if nothing inside is stolen.”
• “Nothing in the text of the statute links ‘access’ with
infringement of the underlying copyright.”
MGE UPS Sys. v. GE Consumer & Indus.
Petition for Rehearing
Amicus Brief of United States
• “[I]f the ‘access’ prohibited under section 1201(a)(1)(A) must
‘infringe[] a right protected by the Copyright Act,’ then the
DMCA only prohibits what the Copyright Act already prohibits.”
• The panel’s reading of the statute conflates (§1201(a))
technological access controls with §1201(b) infringement
controls.
• “The panel’s decision also threatens to frustrate Congress’s
purposes in enacting section 1201(a)(1). The entire point of
that provision was to provide a federal prohibition against
bypassing passwords, encryption, and other technologies that
regulate access to a copyrighted work in circumstances in
which the act of obtaining access would not by itself violate the
copyright laws. Congress was concerned that, absent a strong
federal prohibition on circumventing such technological locks,
copyright owners would be unwilling to release digital versions
of their works in online marketplaces.”
MGE UPS Sys. v. GE Consumer & Indus.
Petition for Rehearing
Amicus Brief of United States
“[T]he panel’s discussion of the types of
‘access’ prohibited by section 1201(a)(1)
was unnecessary to the outcome. As an
alternative ground for affirming the district
court’s dismissal of the DMCA claim, the
panel held that MGE failed to carry its
burden to prove that GE/PMI committed
an unauthorized act of circumvention.”
MGE UPS Sys. v. GE Consumer & Indus.
622 F.3d 361 (5th Cir. 2010) (“MGE II”)
MGE II
• Because § 1201(a)(1) is targeted at
circumvention, it does not apply to the use of
copyrighted works after the technological
measure has been circumvented.
• The issue, therefore, is not whether the
technological measures that effectively
controlled access to MGE's software were
circumvented at some point, but whether the
actions of GE/PMI's own representatives
amounted to circumvention.
• Without proving GE/PMI actually circumvented
the technology, MGE does not present a valid
DMCA claim.
MDY Industries v. Blizzard Ent.
629 F.3d 928 (9th Cir., Dec. 14, 2010)
• § 1201 creates 2 types of claims
– § 1201(a) prohibits the circumvention of any technological
measure that effectively controls access to a protected
work and grants copyright owners the right to enforce that
prohibition.
– § 1201(b) prohibits trafficking in technologies that
circumvent technological measures that effectively protect
“a right of a copyright owner.”
• § 1201(a) does not explicitly refer to copyright infringement.
– It extends a new form of protection -- the right to prevent
circumvention of access controls, broadly to copyrighted
works.
– Descrambling a scrambled work and decrypting an
encrypted work— the actions given as examples of
circumvention -- are acts that do not necessarily infringe or
facilitate infringement of a copyright.
MDY Industries v. Blizzard Ent.
629 F.3d 928 (9th Cir., Dec. 14, 2010)
• 9th Cir. declines to adopt Chamberlain’s “nexus” requirement
because it is contrary to plain language of the statute.
– Congress chose to link only § 1201(b) explicitly to
infringement.
– Descrambling and decrypting, regulated by § 1201(a), may
only enable noninfringing access to a work.
– Congress created a mechanism in § 1201(a)(1)(B)-(D)
(Library of Congress rulemaking) to exempt certain noninfringing behavior from § 1201(a) liability, a mechanism
that would be unnecessary if an infringement nexus
requirement existed.
• In mandating a § 1201(a) nexus to infringement, we would
deprive copyright owners of the important enforcement tool
that Congress granted them to make sure that they are
compensated for valuable non-infringing access—for
instance, copyright owners who make movies or music
available online, protected by an access control measure, in
exchange for direct or indirect payment.
MDY Industries v. Blizzard Ent.
629 F.3d 928 (9th Cir., Dec. 14, 2010)
• The differences in structure between § 1201(a) and (b) reflect
Congress's intent to address distinct concerns by creating
different rights with different elements.
• Legislative history: Congress created a new anticircumvention
right in § 1201(a)(2) independent of traditional copyright
infringement and granted copyright owners a new weapon
against copyright infringement in § 1201(b)(1).
• Congress intended, in light of the current digital age, to grant
copyright owners an independent right to enforce the
prohibition against circumvention of effective technological
access controls.
• Section (a) creates a new anticircumvention right distinct from
copyright infringement, while section (b) strengthens the
traditional prohibition against copyright infringement.