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558 ANTI-CIRCUMVENTION: A NEW STATUTORY SCHEME
gical 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.
(2) As used in this subsection —
(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.
(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. . . .
Introduction
The Digital Millennium Copyright Act (“DMCA”) was passed in 1998 with the
purported mission of “updating copyright law for the digital age.” In the last chapter, you
read about one of its key provisions—the safe harbors for service providers in section
512. As explained by the legislative history, these limited liability in order to “ensure[]
that the efficiency of the Internet will continue to improve and that the variety and quality
of services on the Internet will continue to expand.” This chapter explores the
countervailing provision of the DMCA that expanded potential liability. Quoting again
from the legislative history: “Due to the ease with which digital works can be copied and
distributed worldwide virtually instantaneously, copyright owners will hesitate to make
their works readily available on the Internet without reasonable assurance that they will
be protected against massive piracy. [This legislation] provides this protection. . . .”
Specifically, Section 1201 of the DMCA added legal protection for “technological
measures” employed by copyright owners either to prevent unauthorized access to their
works (“access controls”), or to prevent copying, distribution, or other uses of their works
that might infringe their exclusive rights (“rights controls”). You have probably
encountered such technological measures—often referred to as “digital rights
management” or “DRM.” They might prevent you from “ripping” streaming audio or
video, modding video games, installing software on unauthorized devices, or printing
and sharing eBooks beyond certain limitations. Which of these do you think are access
controls, and which are rights controls?
Section 1201 can be difficult to parse; to assist you with understanding its
structure, its basic provisions are summarized in the following chart.