Anti-circumvention and Copyright Management Information: Analysis of New Chapter 12 of the Copyright Act

• Jurisdiction: United States,Federal
• Citation: Vol. 1 No. 1999
• Publication year: 1999

Bentley J. Olive TABLE OF CONTENTS

I. INTRODUCTION

II. THE ANTI-CIRCUMVENTION PROVISION

A. Basics of Anti-Circumvention

B. Exemptions from Liability

1. Fair Use Defense

2. Reverse Engineering

3. Encryption Research

4. Information Security Activities

5. Exceptions Regarding Minors

6. Protection of Personally Identifying Information

7. Exemption for Nonprofit Libraries, Archives, and Educational Institutions

8. Certain Other Analog Devices and Technological Measures

C. Public Interest Concerns

III. COPYRIGHT MANAGEMENT INFORMATION PROVISION

A. Basics of the Copyright Management Information Provision

B. CMI Used for a Functional Purpose?

C. Privacy Concerns

D. Limitations on Liability

IV. CIVIL REMEDIES AND CRIMINAL PENALTIES

V. CONCLUSION

I. INTRODUCTION

Over the past decade, the amount of information that is readily available has increased exponentially. The Internet has enabled instant access to millions of pages of information. Many forms of documents, art and music have been placed on the Internet in digital format, thus enabling people to retrieve perfect reproductions of copyrighted material instantly. The information on compact discs, DATs and DVDs can be copied virtually without effort or cost and are easily transmitted over the Internet and other such electronic communications networks. People can use the Internet to post an entire copy of a computer program or recorded music on an Internet “bulletin board,” which is then available for anyone to download. Because of the availability of information and the ease with which it can be copied, the piracy of copyrighted work is more of a threat now than ever before.

To update the Copyright Act of 1976, ¹ and in light of the size, scope, and popularity of the Internet and other digital forms of copyright, the Digital Millennium Copyright Act of 1998 (DMCA) was signed into law on October 28, 1998. ² The DMCA complies with the World Intellectual Property Organization Copyright Treaty (WCT) ³ and the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT) ⁴ adopted at the World Intellectual Property Organization (WIPO) Diplomatic Conference in December 1996. Two major provisions of the WIPO treaties require contracting parties to provide legal remedies against the circumvention of technological protection measures and the tampering with copyright management information (CMI). ⁵ The DMCA implements the anti-circumvention and CMI provisions in the new chapter 12 of the Copyright Act. ⁶ The anti-circumvention provision is drafted narrowly, but it will help to provide protection against unauthorized circumvention of technological protection measures used to protect copyrighted works, including restrictions on the manufacture and distribution of devices and other technological means that are primarily designed or produced to circumvent such protection measures. ⁷ The CMI provision prohibits persons from intentionally tampering with CMI, which includes things like information identifying the title, author, and owner of the copyrighted work. ⁸

In any copyright legislation, the essential premise of copyright law should be to maximize the creation and distribution of creative works of authorship by rewarding the creators of such works in a manner that also promotes the free distribution of ideas within society. ⁹ This must be kept in mind because the size, scope, and utility of the new digital domain differ greatly from all previous media. As proponents of the DMCA have successfully argued, analogies to these media provide limited assistance in evaluating the potential impact and constitutionality of legislation intended to cover this area. ¹⁰

The WIPO treaties are intended to assure authors and artists that their rights will be respected as they make their works available on the Internet and in other digital forms. The new DMCA provisions are limited by the fair use doctrine and other copyright limitations, ¹¹ but the extent to which the fair use doctrine is an option if copyright owners decide not to make their works available is questionable. Proponents have persuaded Congress that before copyright owners will make their works available for public benefit, owners’ works must be protected from unauthorized access, such as with encryption or other forms of technological protection designed to prevent unauthorized access to a work. ¹²

The new amendments implement the anti-circumvention and CMI provisions required to comply with the WIPO treaties. Chapter 12 includes five sections: (1) section 1201 prohibits the circumvention of technical copyright protection measures; (2) section 1202 protects CMI; (3) section 1203 provides civil remedies for violations of sections 1201 and 1202; (4) section 1204 provides criminal remedies for violations of sections 1201 and 1202; and (5) section 1205 is the savings clause of the chapter. ¹³ This paper examines the provisions of the amendments and their application. Additionally, this paper focuses on the perceived problems the amendments may cause users and speculates on the effectiveness of the new amendments in accomplishing Constitutional goals.

II. THE ANTI-CIRCUMVENTION PROVISION

The anti-circumvention provision was enacted because of the recognition that: copyrighted works made available in digital form are extremely vulnerable to unauthorized copying and distribution and that authors will increasingly use means, such as encryption, scrambling and passwords, in an effort to prevent misuse of their works. The provision is intentionally general because as technology advances, copyright owners will have to adapt their circumvention protection measures accordingly and the law would be hard-pressed to anticipate such advances. Because the anti-circumvention provision is so general, it may be unnecessarily broad. Such protection is available to copyright owners whether the use regulated is permitted or prohibited by law. Some are concerned that this provision will displace the background law as the primary means of regulating access to information they protect. ¹⁴

A. Basics of Anti-Circumvention

The anti-circumvention provision prohibits persons from gaining unauthorized access to a copyrighted work by circumventing a technological measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work. ¹⁵ The circumvention of a technological protection measure put in place by a copyright owner to control access to a copyrighted work is analogous to taking a copy of a copyrighted work, such as a book, from an author who has secured that copy. In the digital domain, rather than physically taking a secured copy of a work, a work is misappropriated by “circumventing a technological measure” put in place by the copyright owner.

New chapter 12 defines “circumvent a technological measure” as “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure.” ¹⁶ In order to be in violation: (1) the technological measure must effectively control access to the work by, in the ordinary course of its operation, requiring the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work; (2) the work to which access is controlled by the technological measure must be a work that is under copyright; and (3) the circumvention must be without the authority of the copyright owner. ¹⁷ Such technological measures include serial numbers, passwords and encryption, as well as timers that permit access for limited periods. For example, on the Internet, a prohibited act would be the circumvention of a copyright owner’s website protection measures in order to gain unauthorized access to his or her copyrighted works.

The provision does not apply to every protection measure taken by a copyright owner, but only to effective protection measures. Effective protection measures are those that render the copy of the work unusable unless the consumer has an authorized means to render the work acceptable and useable such as through an access code or decryption key. ¹⁸ Thus, the basic prohibition imposed by the provision is on the unauthorized “circumvention of any measure that effectively controls access to a copyrighted work operates irrespective of whether the access gained, apart from the circumvention needed to effect it, infringes a property right in the work.” Many are opposed to such broad protection because the provision would make it a violation even if the work to which it applies is not eligible for protection. ¹⁹

Additionally, section 1201 prohibits persons from manufacturing, importing, offering to the public, or otherwise trafficking in or making technologies, products and services that can be used to circumvent a technological protection measure that effectively controls access to a copyrighted work. ²⁰ Just as lawmakers have outlawed “skeleton” keys, and other lock picking devices, this section outlaws certain devices used to gain access to copyrighted works, such as software, books, movies and music. Section 1201 provides three different tests to distinguish devices and services that have no meaningful purpose or use other than circumvention from those that should not be prohibited. ²¹ To be in violation, the technology, product, service, device, component or part must: (1) “be primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a” copyrighted work; (2) have “only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a” copyrighted work; or (3) be “marketed by [the person acting in violation] or another acting in concert with that person with that person’s knowledge for use in circumventing a technological...