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DMCA Anti-Circumvention Provisions
The Digital Millennium Copyright Act
Let's start with a review of the law. The two sections we're most interested in are Title 17, Chapter 12, Section 1201(a) and Section 1201(b):
" 1201. Circumvention of copyright protection systems
"(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES.-"(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter....
...
"(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-"(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"(3) As used in this subsection?
"(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title."(A) to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
"(B) a technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
"(b) ADDITIONAL VIOLATIONS.-"(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?"(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;"(2) As used in this subsection-
"(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
"(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof."(A) to 'circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
"(B) a technological measure 'effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.
The law covers two related but distinct concepts. The first is the concept of "access controls," the second is the concept of "copy controls." The law covers these two items separately and treats them differently, so it's important to make the distinction. Copy controls can be thought of as measures which actually prevent copying. Access controls prevent usage, not copying. Copy controls: Macrovision, serial copy protection for digital works, old floppy protection schemes, etc. Access controls: encryption, passwords, usage restrictions, etc.
Section 1201(a)(1) prohibits anyone from circumventing access control measures, with exemptions to be determined by the Librarian of Congress. Section 1201(a)(2) prohibits anyone from building, importing, or distributing a device designed for circumventing access control measures -- no exemptions.
Section 1201(b) prohibits anyone from building, importing, or distributing a device designed for circumventing copy control measures. Note that there is no counterpart to 1201(a)(1), that is, you are not prohibited from USING such a device if you manage to obtain one without building it or obtaining it from anywhere else. (Achieving this is left as an exercise for the reader.) Using such a device would presumably fall under older copyright laws -- you're making a copy.
Only the very first section -- 1201(a)(1) -- had its implementation delayed. The other two -- the device-building sections -- took effect immediately upon passage of the law, October 28, 1998. That first section was the subject of a hearing and review process in which the Librarian of Congress had the option to exempt certain classes of copyrighted works from the prohibition. The public had a chance to comment and reply to others' comments.
The review process is now complete, and the ruling has been issued. Only two exemptions were issued:
- Compilations consisting of lists of websites blocked by filtering software applications;
- Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness
The Register of Copyrights considered and denied all of the other exemptions suggested. Commenters and speakers suggested a wide range of exemptions. Libraries, universities and individuals generally promoted exemptions; corporations owning vast amounts of copyrighted materials opposed them. There were several factors working against any exemptions being granted, though.
The first and largest factor was that the rule-making only applied to that single section of the law, regarding circumvention of access controls. The Register of Copyrights shot down a lot of comments because the commenter's focus seemed to be on copy controls rather than access controls. For example, if a work prohibited one from copying a section of the work in order to comment on it, that would be considered a copy control, not an access control, according to the copyright office.
Another factor was that the Register of Copyrights defined "classes of works" very narrowly, in a way that severely damaged many of the submissions -- they were too broad. Imagine, if you will, being asked to write an essay on why slaves should be free. You do so. The teacher hands it back with an "F" and say, "No, not slaves in general -- I wanted you to identify specific slaves and tell me why those particular slaves should be free as opposed to the others." Even though the libraries and universities made powerful arguments pertaining to large numbers of works, because they didn't break down their arguments into specific narrow categories -- even though it would be silly and wasteful of paper to do so -- the Register of Copyrights threw out their arguments. Even where specific classes of works were singled out by the commenters, unless they submitted a great deal of evidence, they weren't deemed to have met the burden necessary of proving that they were being harmed by the prohibition on circumvention of access controls. In particular, the Register of Copyrights noted that "individual cases" would not be sufficient to meet the burden of showing harm. And no exemptions were granted where there was a large company opposing the exemptions.
So what happened to DVDs? A section of the ruling was devoted to discussing the DVD situation -- if you've been following the DVD mess, this is a must-read. The Register of Copyrights declined to enact any sort of exemption for circumventing access controls on DVDs, citing a number of factors. Within the twisted logic of the rule-making, the factors are actually sensible -- if you accept his premises, even a madman is sane. They seem to have been thinking of the region-coding scheme as the primary "access control" worthy of note. The copyright office reasoned that since you could buy a Windows machine or a DVD player (or a DVD player from another region, if needed), or perhaps a VCR, that there was no reason for an exemption. (Keep in mind here that 2600 et al. are being sued under the other sections of the DMCA, so their plight is not an example of harm caused by this section.) The Register did consider that the blending of copy controls and access controls in CSS might be a problem, but decided that Congress, not the Library of Congress, should address it. As a result, the final word on DVD's is this: you can't make or distribute a device to circumvent either the access control function of CSS or the copy control function. However, you may circumvent the copy control function, subject to the limitations of normal copyright law, but you may not circumvent the access control function. Thus it is illegal to, for example, fast-forward past the advertisements at the beginning of a DVD that you purchased, since that would involve circumventing the access controls.
(As an aside, my cynical nature suggests that if any censorware vendors had commented on this rule-making and said something along the lines of, "Our company will utterly collapse if you grant an exemption here," like Sony, Time-Warner, the MPAA and other copyright-holders did with regard to DVDs, that exemption wouldn't have been granted either.)
Possible penalties you may face are both civil and criminal. The criminal penalties are a fine of up to $500,000 and five years in prison; civil penalties are the actual damages suffered by the plaintiff or up to $2,500 per act.
So where does this leave us? One area that wasn't discussed in the rule-making was how a user was supposed to exercise the right to circumvent access controls without being able to purchase or create a device for doing so. Typically "device" is interpreted very broadly -- it means "any combination of software and/or hardware." So let's say you decide to take advantage of the exemption for publishing the lists of sites blocked by censorware products. You can feel free to circumvent their encryption, as long as you don't use any devices to do it -- no software, no hardware, no tools whatsoever. Even a pencil and paper is a "device" for these purposes. Presumably you could print out the encrypted file and then decrypt it in your head.
The other exemption is similar. Libraries pointed out that companies often go out of business, perhaps leaving them no way to gain access to some of the works they've purchased. So for this purpose, libraries can circumvent the access controls on those works -- assuming they can do so without creating any sort of "device".
In other words, this whole exercise was futile. The prohibitions on actually circumventing access controls will never be enforced, or at least rarely. Far more common will be prosecutions and civil suits under the sections which deal with making and distributing devices, where there is no concern with exemptions. Copyright holders will concentrate on taking away the tools to circumvent rather than preventing people from circumventing, since it isn't possible to circumvent without tools and most people do not possess the ability to manufacture their own tools.
(I should point out that there are certain other narrow exemptions built into the DMCA -- read it in its entirety if you wish. They are very narrow indeed and have very specific requirements. Rely on them at your peril. For example, you are permitted to circumvent access controls if those controls violate your privacy by collecting or transmitting personal identifying information. But you still aren't permitted to create or obtain a device to perform that circumvention.)
Readers: I hope that this article can be a resource for answering the questions about the anti-circumvention provisions of the DMCA that come up time and time again. This is the law, as much information as is available. If a question is coming to your mind about a specific circumstance, the answer is: whatever a judge says it is. There is no more information, no firm answers. A device can be purely software, and in the same vein as encryption software, restrictions on publishing such software devices run squarely into the First Amendment. Will there be a case testing this? What will win, the DMCA or the 1st Amendment? In 2 or 3 years, the Librarian of Congress will conduct this same review process once again, looking at the restrictions on circumventing access controls. Perhaps the library and user communities will do a more convincing job the next time around. But keep in mind that the strongest parts of the law, the prohibitions on devices, are not subject to this exemption process.
-- Michael Sims, 2000-10-30
I'm afraid you are wrong. You thinking of the current trend in software licencing and trying to extend it to general copyright law.
.-, they are just different symbolic codes for the exact same entitiy, and the exact same IP, but the .- now operates under a different law than the A.
.. -.. .. --- - .. -.-.
If you buy a book you OWN the book. Period. You can access it in any way you want. You can sell it, trade it, lend it to a friend, etc.
You can also quote it, burn it, cut its words out and rearrange them, scribble in it, etc.
And here's the real kicker, you can COPY it in its entirety for you * own use.*
You can do all of this legally specifically because you do NOT license it. You BOUGHT the book.
What you *cannot* do is copy it and the GIVE that copy to someone else because you do not own the work itself, only the book, but you have the absolute right to use that book in ANY manner yourself.
Video and sound operate under exactly the same rules. You may copy, encode, sample, use as a Frisbee (tm), chop up and rearrange your music and videos at will, lend or even rent to a friend, all legally. How do you think video stores operate? Do you think they have a special licence? No, they don't. You can buy tapes at retail and rent them, it is your RIGHT!
This right is legally defined EXPLICITY by acts of Congress.
Now find one or your commercial video tapes, and a commercial DVD. Please note that there in *no licence* notice on EITHER. They both claim the SAME * copyright protection.* Not licence protection. Copyright protection.
In fact, and here's the really ironic part of the whole damn thing, the very fact that you can purchase a video tape with no access or copy controls is being used by the lawyers to * claim the DMCA denies you none of these rights because you can by a video tape instead, for which these rights remain intact!*
Think about that one really, really hard for a minute.
The DMCA makes a subcatagory of IP * storage * as a special protected class. The fact that langague used in the *copy* of a work is coded in ones and zeros, instead of the 26 letters of the alphabet, give it special status. This is no different from saying that books written in German have different copyright laws applicable than books written in English or Spanish.
Think about this one, what if I wrote a book in * Morse Code.* The DMCA would then apply to a * printed work.*
Why should it?
Answer: It shouldn't, but that's what it does.
.- is A. A is
It's
Do not try to read the above word, to do so is in violation of the DMCA. The above is my IP and you must purchase a code key from me. Obtaining a code key elsewhere is in violation of the DMCA. If you "know" the code key we maintain that your brain is an illegal device by the definition excepted by the DMCA and you are now a criminal. Offenders will prosocuted.
Circumvention is a necessary liberty. Without circumvention for technology we cannot figure out how technology works or make technologies compatible (and don't tell me we're allowed to do that under the law -- look at the DeCSS case). These anti-circumvention provisions of the DMCA must be struck down. They only serve to vest power into the hands of large corporations and impede technological progress. Circumvention is a right!!
--
--
He lives in a world where those who do not run the client software of the omnipresent meme are unacceptable.
MSK
Um, if it effectively controlled access wouldn't this law be *unnecessary*? It's like putting some gum on a chest to "lock" it in place, then when somebody "circumvents" your access control device, running to the government and saying "hey, they're not allowed to circumvent my anti-circumvention device - make a law!". I mean, why don't they just make a law that says nobody can circumvent anything they don't want them to, and just do away with the tedious practice of actually designing and implementing controls?
It's 10 PM. Do you know if you're un-American?
History buffs will immediately recognize the similarity between this and Prohibition (i.e. of alcohol in the 20s), wherein it was legal to drink the stuff, it just wasn't legal to buy or brew it.
Thus came the "speakeasy", or a house/club where persons unknown (i.e. Capone and company) supplied the house and its patrons with booze. The patrons, as members of the club, found themselves "magically" in posession of the booze, and proceeded to consume it.
Further deponent sayeth not, other than that Capone went down for tax evasion, not the booze racket.
I'd hate to see DMCA-protected hardware in the future; however, the trend has been set: hardware devices in the future will be relatively cheap, but there will be an expensive service bound to them. They will be easy to hack, but doing so means violating the DMCA and facing the full brunt of the U.S. legal system. In other words, technological Darwinism as we know it will end. Pathetic companies like DC will be allowed to leech money off of their pathetic products and they will be allowed to make a despicably large profit. If this isn't grounds for a revolution, then I don't know what is.
"Ancillary does not mean you get to rule the world." --U.S. Circuit Judge Harry Edwards, speaking to the FCC's lawyer
...and I would not sit in the back of the bus, or use "separate but equal" facilities, or submit to the other recent denials of civil rights.
Yes, I am equating this with the civil rights marches of the '50s and '60s. Why? Because the same principle is at stake: a small segment of the population is being denied the right to exercise a basic freedom, and the rest of the society must necessarily be lesser because of it.
This is serious, people! You can either follow the herd mentality and be a good sheep, or you can stand up for what is right and decent. It's your choice.
Dewey, what part of this looks like authorities should be involved?
If you combine UCITA -- and its ability to enforce such things as shrinkwrap terms prohibiting product criticism and reverse engineering -- with the DMCA, what will we have? I fear it could be a form of censorship that will make the most despotic governments exceedingly envious.
Good article. Send it to your legislator.
sulli
RTFJ.
New exempt categories set forth in the rule are:
(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 obsoleteness.
Exemptions the Librarian rejected were:
1. ``Thin Copyright'' Works
2. Sole Source Works
3. Audiovisual Works on Digital Versatile Discs (DVDs)
4. Video Games in Formats Playable Only on Dedicated Platforms
5. Computer Programs and Other Digital Works for Purposes of Reverse Engineering
6. Encryption Research Purposes
7. ``Fair Use'' Works
8. Material that Cannot be Archived or Preserved
9. Works Embodied in Copies Which Have Been Lawfully Acquired by Users
10. Exemption for Public Broadcasting Entities
If it weren't for the 2nd amendment, wide ranging gun control would have been a reality in this country long ago. Think what you like about gun control, or even the "militia" interpretation of the 2nd amendment, and so forth, that amendment is a clause in the Constitution which gun control opponents can point to, giving them a powerful ally.
Unfortunately, there is no rule in the Constitution protecting our right to build and own technology-- devices or software. While shooting somebody with a gun is very illegal, owning the gun is not. You'd think that actually pirating, and violating copyright, is all that would need to be illegal. But, no, because we don't have a specific clause in the constitution protecting that right, even purchasing or building something which could be used for copyright violation is illegal. It's just crazy. It's so ironic I could just weep.
Perhaps the gun lobby is powerful enough that it could be enlisted as an ally? The parallels are clear; devices which themselves are not illegal, but which have readily apparent illegal uses. Perhaps the gun lobby could be convinced that the DMCA, once it stands, could be used as a precedent to weaken their case further.
It's really too bad that most of the population our country is not technically savvy enough to really understand these issues. As long as they can stick a DVD in their Windows machine and have it work, they're happy. And, they love to see the law crack down on all the dangerous pirates and hackers and similar scary people.
-Rob
(c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
So, fair use as defined in Chapter 1 section 107 still stands. Case 4 of that section makes it clear that making an incidental copy (such as with DeCSS), of a work in order to view/listen to it is fine if the incidental copy is not distributed, ie if the actions take to use the work have no effect on the market for the product. If I use DeCSS to make a version of a movie that I can watch on my computer I'm in the clear so long as I don't ever let anyone else possess that copy
So, where's the problem? It is that the whole DeCSS thing revolves around MPAA pretending DeCSS's primary function is duplication for distribution (which breaches para 4 of 1:107 since it reduces the market for the "genuine" product). Now they know this is a lie, and we all know it's a lie. The real reason is that they want to protect their monopoly on DVD players and the licence fees from that. The weakness of this argument is that the copies they claim are the main purpose are so bulky and inconvienient compared to a bitwise copy of the disc that it makes no sense to use DeCSS for this purpose, which only leaves the legal use.
Surely this can't be that hard to demonstrate in front of a judge?
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
Effective access control? Hee hee hee... well now, that in itself is open to debate isn't it?
No, it isn't. RTFA:
As I posted in a previous article, whereas most /.ers take "effectively" to mean "in an effective way", the law is written so that it means "for all practical purposes" (thank you, dictionary.com). This means that if someone uses even the simplest of access controls, like base-64 + XOR, it "effectively controls access", even if that access control becomes widely known.
A well informed Public, being necessary to the security of a free State, the right of the people to keep and bear Technology, shall not be infringed.
sulli
RTFJ.