cyckV4

560 ANTI-CIRCUMVENTION: A NEW STATUTORY SCHEME
I make a garage door opener that contains copyrighted code, and you develop a generic
hand-held transmitter that—in order to open the garage door—has to bypass a
technological control to access that code, have you violated the DMCA? Would you
expect the DMCA to have anything to do with garage door openers? (This is a real case,
and it’s in your readings.)
By enjoining the distribution of certain types of computer code, does § 1201 run
into First Amendment issues? Let’s say the defendant’s allegedly infringing tool, a DVD
decryption program, enables circumvention. If the DMCA enjoins the distribution of that
decryption program under its anti-trafficking rules, is it unconstitutionally suppressing
speech? Is computer code “speech”? How would you frame the issue so that it was, or
was not? (This case is also in the readings. Also, a heads’ up to gamers: the final case in
this chapter is about World of Warcraft.)
The exceptions in DMCA § 1201 are beyond the scope of this chapter, but a few
things are worth mentioning here. Sections 1201(a)(1)(B)–(E) spell out an administrative
rulemaking proceeding that takes place every three years and is supposed to enumerate
certain “classes of works” for which circumvention (just the act of circumvention, not
the tools enabling it) is allowed in order to make certain “noninfringing uses.” In practice,
these rulemakings have only yielded a handful of narrow exceptions. (They have never
granted many of the exceptions you might expect, such as allowing owners of lawfully
purchased DVDs to circumvent in order to make backup copies or watch them on DVD
players from other regions.) Moreover, any exceptions expire after 3 years unless
proponents make a new evidentiary showing that they’re still warranted. For example,
circumventing to “unlock” mobile phones in order to connect to a different wireless
network was allowed in 2009 but then curtailed in 2012. In 2014, Congress stepped in to
overrule that 2012 determination by passing the “Unlocking Consumer Choice and
Wireless Competition Act,” a new law that allows mobile phone unlocking on a
permanent basis. (Yes, the 2014 Congress could not agree on much, but there was
bipartisan support for reversing the DMCA rulemaking.) Sections 1201(d) through (j) of
the DMCA provide other limited exceptions for libraries, archives, and educational
institutions; law enforcement; reverse engineering; encryption research; protecting
minors; disabling cookies; and security testing. They vary in scope, and some are
extremely circumscribed (read the text of § 1201(d) for an example of this).
James Boyle, The Public Domain
pp. 83–89
Imagine that a bustling group of colonists has just moved into a new area, a huge,
unexplored plain. (Again, assume the native inhabitants have conveniently disappeared.)
Some of the colonists want to farm just as they always did in the old country. “Good
fences make good neighbors” is their motto. Others, inspired by the wide-open spaces
around them, declare that this new land needs new ways. They want to let their cattle roam
as they will; their slogan is “Protect the open range.” In practice, the eventual result is a
mixture of the two regimes. Fields under cultivation can be walled off but there is a right
of passage through the farmers’ lands for all who want it, so long as no damage is done.
This means travelers do not need to make costly and inefficient detours around each farm.
In the long run, these “public roads” actually increase the value of the private property
through which they pass. They also let the ranchers move their cattle around from one