A Matter of Access: How Bypassing Drm Does Not Always Violate the Dmca

• Citation: Vol. 7 No. 1
• Publication year: 2011

Washington Journal of Law, Technology and Arts Volume 7, Issue 1 Summer 2011

A Matter of Access: How Bypassing DRM Does Not Always Violate the DMCA

Alicia Hoffer (fn*)

Abstract

In the last decade, several federal circuit courts have applied the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) to determine what forms of unauthorized access to copyrighted work are prohibited. Courts have considered Digital Rights Management (DRM) disputes concerning access to both copyrighted digital-media and manufactured products. The Second and Ninth Circuits have applied the DMCA in digital media cases to protect the owners of digital copyrighted works. The Fifth, Sixth, and Federal Circuits have applied the DMCA in manufactured-product cases, holding that bypassing DRM controls does not violate the DMCA under certain circumstances. These differing conclusions stem from the circuits' interpretations of the need for a nexus between DRM circumvention claims and copyrighted work; the prevailing view is that the DMCA applies in the context of copyrighted digital works but not more traditional manufactured goods. This Article outlines the DMCA provisions applying to DRM and assesses the protections DRM controls can be expected to provide for digital media compared with manufactured products.

Table of Contents

Introduction....................................................................................14

I. Basic Purpose and Operation of the DMCA...........................15

II. DMCA Enforcement by Jurisdiction......................................17

A.Circuits Considering Access to Digital Media..................17

1.Second Circuit..........................................................17

2. Ninth Circuit.............................................................19

B.Circuits Considering Interoperable Manufactured Products...........................................................................20

Conclusion.....................................................................................24

Practice Pointers.............................................................................24

Introduction

Digital Rights Management (DRM) is technology that copyright holders may use to permit or restrict access to digital content. The Digital Millennium Copyright Act (DMCA) prohibits circumvention of DRM on copyrighted material.(fn1) Section 1201(a), the basic DMCA anti-circumvention provision, states that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title."(fn2) As courts have dealt with DRM in various circumstances, the question has become whether this DMCA anti-circumvention provision refers only to access related to an underlying act of copyright infringement, or whether the provision refers to all attempts to bypass DRM controls.

The use of DRM technology in consumer products illustrates the difficulty in determining DMCA violations. For example, iTunes has used DRM to prevent the unauthorized copying and distribution of purchased music files.(fn3) An iTunes user who bypasses the iTunes DRM and distributes music files is likely violating the anti-circumvention provision. A more complicated DRM issue arises when a manufacturer places a computer chip with a copyrighted access code on a product like a garage door opener. Is bypassing that copyrighted code and opening the garage door a DRM infringement?

This Article answers this question by analyzing recent circuit court opinions dealing with the DMCA's anti-circumvention provision. This analysis explores whether DRM must be linked to an underlying copyright interest before those DRM will receive DMCA protections. In several recent opinions, courts have indicated that this link is an important step in securing DMCA protections. Courts tend to find a sufficient link in cases concerning digital media more often than in cases involving manufactured products.

I. Basic Purpose and Operation of the DMCA

Digital Rights Management emerged in the late 1990s as digital media proliferated and content providers sought ways to control their rights to digital content such as software or MP3 music files.(fn4) Unlike VHS tapes or print materials, digital content can be copied and distributed flawlessly and easily. in order to prevent unauthorized copying, providers developed systems for controlling the distribution of and managing access to content.(fn5)

In 1998, Congress enacted the DMCA to bring "U.S. copyright law squarely into the digital age" and protect copyrighted material from digital infringement.(fn6) Lawmakers, grappling with the rapid advance of Internet technologies, tried to make "digital networks safe places to disseminate and exploit copyrighted materials."(fn7) Lawmakers also sought to protect such information from those who might illegally profit by making unauthorized reproductions of copyrighted digital content.(fn8)

To protect such content, the Act links DRM protections to works protected by the Copyright Act. In particular, Section 1201(a)(1)(A) provides that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title."(fn9) The House Committee report likened these DRM protections for copyright owners to protections against breaking and entering: "The act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book."(fn10) This committee report, by referring to the interest of copyright...