Advanced Copyright Issues on the Internet - Fenwick & West LLP

otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without theauthority of the copyright owner.” That section further provides that a technological protectionmeasure “effectively controls access to a work” if “the measure, in the ordinary course of itsoperation, requires the application of information, or a process or a treatment, with the authorityof the copyright owner, to gain access to the work.”Section 1201(a)(1) provides that the prohibition on circumventing a technologicalmeasure to gain unauthorized access to a work does not take effect until the end of a two-yearperiod beginning on the date of enactment of the bill – the two year waiting period expired onOctober 28, 2000, and the prohibition is now in effect.(i)Exemptions Adopted by the Librarian of Congress.Section 1201(a)(1) requires the Librarian of Congress, upon recommendation of theRegister of <strong>Copyright</strong>s and in consultation with the Assistant Secretary of Commerce forCommunications and Information, to conduct a rulemaking 480 during the initial two-year period,and during each succeeding three-year period, to determine whether certain types of users ofcopyrighted works are, or are likely to be, adversely affected by the prohibition in Section1201(a)(1). 481 The Librarian must publish a list of particular classes of copyrighted works forwhich the rulemaking determines that noninfringing uses have been, or are likely to be,adversely affected, and the prohibitions of Section 1201(a) shall not apply to such users withrespect to such class of works for the ensuing three-year period.The Exemptions of 2000. On Oct. 27, 2000, the <strong>Copyright</strong> Office published the first setof classes of copyrighted works that the Librarian of Congress determined would be exemptfrom the anti-circumvention provisions of Section 1201(a)(1), with the exemption to be in effectuntil Oct. 28, 2003. 482 Those classes, which were only two in number and very narrowlydefined, were as follows:1. Compilations consisting of lists of websites blocked by filtering software andapplications. The Librarian determined that an exemption was necessary to avoid an adverseeffect on persons who wish to criticize and comment on such lists, because they would not beable to ascertain which sites are on the lists unless they circumvented encryption protecting thecontents of the lists. 483480481482483As originally passed by Congress, section 1201(a)(1) required that the rulemaking be on the record. However,the Intellectual Property and Communications Omnibus Reform Act of 1999, P.L. 106-113, passed by Congresson Nov. 19, 1999 and signed by the President in late 1999, removed the requirement that the rulemaking be “onthe record.”Section 1201(a)(C) provides that in conducting the rulemaking, the Librarian shall examine the availability foruse of copyrighted works; the availability for use of works for nonprofit archival, preservation, and educationalpurposes; the impact that the prohibition on the circumvention of technological measures applied tocopyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; and the effectof circumvention of technological measures on the market for or value of copyrighted works.65 Fed. Reg. 64556 (Oct. 27, 2000).Id. at 64564.- 118 -