Advanced Copyright Issues on the Internet - Fenwick & West LLP

(5) Other Rights Not AffectedSections 1201(c)(1), (2), and (4) provide that Section 1201 is not intended to affectrights, remedies, limitations, or defenses (including fair use) to copyright infringement; or toenlarge or diminish vicarious or contributory liability in connection with any technology orproduct; or to enlarge or diminish any rights of free speech of the press for activities usingconsumer electronics, telecommunications, or computing products.Notwithstanding these provisions, groups such as the Digital Future Coalition (DFC)have criticized the approach of the DMCA. In a position paper dated August 1997, 606 the DFCargued that Section 1201 would effectively negate fair use rights, because it imposes liability for“circumvention” even when the purpose of the activity is permitted by the copyright act (such asreverse engineering or other activities that otherwise constitute fair use). The DFC also arguedthat Section 1201 would outlaw legitimate devices with substantial noninfringing uses,effectively overruling the Supreme Court’s decision in Sony Corp. v Universal City Studios. 607The DFC argued that the savings clauses of Section 1201(c) are inadequate because“while Section 1201 will not as a formal matter restrict existing limitations and exceptions tocopyright, it will as a practical matter preclude the exercise of these limitations and exceptionsby preventing the manufacture and use of the technologies necessary for their existence. Norwould the savings clause protect individuals who gain ‘access’ to works in violation of1201(a)(1), even if they do so for entirely lawful purposes.” 608Another position paper filed on behalf of the Information Technology Industry Councilraised concern that Section 1201 will impose liability too broadly in view of the broad definitionof “circumvention”:Thus, if a device does not respond to a technological protection measure that isintended to control copying, which in some cases may be a simple 1 or 0 inheader information included with the digital content, the device may be construedas avoiding, bypassing, deactivating or impairing that measure.… Companiesthat make devices that do not respond to copy flags – because they don’t knowabout the flags or because of technological difficulties associated with complying– could be liable under Section 1201 even though they had no intent tocircumvent. 609606607608609The position paper may be found at www.ari.net/dfc/docs/stwip.htm.464 U.S. 417 (1984).Position paper at 3.Prepared Statement of Chris Byrne of Silicon Graphics, Inc. on Behalf of the Information Technology IndustryCouncil Before the House Judiciary Committee Courts and Intellectual Property Subcommittee (Wed., Sept. 17,1997) (available from Federal News Service, 620 National Press Building, Washington, D.C. 20045, and on filewith the author). Section 1201(c)(3), discussed above, appears to be directed at least in part to addressing thisissue.- 144 -