Advanced Copyright Issues on the Internet - Fenwick & West LLP

of circumventing a technological measure that effectively “controls access to” a copyrightedwork or “protects a right of a copyright owner,” or has only limited commercially significantpurpose or use other than to circumvent such technological measure, or is marketed for use incircumventing such technological protection measure. Section 1201(b)(2) provides that atechnological measure “effectively protects a right of a copyright owner” if the measure “in theordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of acopyright owner.” Although trafficking in these types of prohibited devices might wellconstitute contributory infringement, Sections 1201(a)(2) and 1201(b) make it a direct statutoryviolation subject to criminal and civil penalties.It should be noted that, although Sections 1201(a)(2) and 1201(b) in combination prohibitdevices designed to circumvent both technological measures that control access to a copyrightedwork and that protect a right of a copyright owner, Section 1201(a)(1) prohibits conduct that isdirected only to the former, but not the latter. The rationale for this distinction was apparently abelief that anyone should be free to circumvent a measure protecting rights of a copyright ownerin order to make fair use of a work, 529 whereas gaining access in the first instance to acopyrighted work without the owner’s permission cannot be a fair use. 530Unlike the case of the prohibition of circumvention to gain unauthorized access to a workunder Section 1201(a)(1), the prohibitions of Sections 1201(a)(2) and 1201(b) were notsuspended for a two year period and went into effect immediately under the DMCA. Thus, theDMCA set up the curious situation in which, for the initial two year period, it did not directlyprohibit circumvention of a technological measure to gain access to a work, but did prohibit themanufacture, sale or importation of devices that would enable or assist one to gain such access.Another curious aspect of the DMCA is that it authorizes the Librarian to createadditional exceptions via rulemaking only to Section 1201(a)(1), but not to Sections 1201(a)(2)and 1201(b). Thus, the DMCA appears to allow the Librarian to permit acts of circumvention inadditional situations, but not the devices necessary to enable or assist such acts.529530See The Digital Millenium <strong>Copyright</strong> Act of 1998, U.S. <strong>Copyright</strong> Office Summary (Dec. 1998) at 4(explaining that the distinction between Section 1201(a) and (b) as to the act of circumvention in itself was “toassure that the public will have the continued ability to make fair use of copyrighted works. Since copying maybe a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing atechnological measure that prevents copying.”). Similarly, the <strong>Copyright</strong> Office noted in its rationale for thefirst set of exemptions it established from the prohibition against circumvention of technological measurescontrolling access to a work: “The decision not to prohibit the conduct of circumventing copy controls wasmade, in part, because it would penalize some noninfringing conduct such as fair use.” 65 Fed. Reg. 64556,64557 (Oct. 27, 2000).Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913, 942 (N.D. Cal. 2009) (“The prohibitionon individual circumvention conduct only applies with respect to access protection technologies (because fairuse can never be an affirmative defense to the act of gaining unauthorized access), not to technologies thatprevent copying.”); Inna Fayenson, “Anti-Circumvention Provisions of The Digital Millennium <strong>Copyright</strong>Act,” Journal of Internet Law, Apr. 1999, at 9, 10.- 127 -