Advanced Copyright Issues on the Internet - Fenwick & West LLP

The paper also raised concern about broadening the standard for liability for third partyuse of devices that infringe copyright owner’s rights from that of the Sony case, which imposesliability only for sale of devices having no substantial noninfringing uses, to the prohibitionunder the bill of devices that are “primarily designed or produced” for circumvention, or have“only limited commercially significant purpose” other than circumvention, or are marketed foruse in circumvention.Enforcement(6) Exemption for Nonprofit Organizations and LawSection 1201(d) sets up an exemption from the circumvention prohibitions of Section1201(a)(1) for nonprofit libraries, archives, or educational institutions that gain access to acommercially exploited copyrighted work solely in order to make a good faith determination ofwhether to acquire a copy of that work, provided that a copy of the work is not retained longerthan necessary to make the good faith determination, is used for no other purpose, and there isnot otherwise reasonably available an identical copy of the work in another form. Section1201(e) provides that the prohibitions of Section 1201 do not apply to lawfully authorizedinvestigative, protective, information security, 610 or intelligence activity of law enforcementofficers.(7) Reverse Engineering for InteroperabilitySection 1201(f) provides three exemptions to the anti-circumvention provisions relatingto reverse engineering and interoperability:Reverse Engineering for Interoperability of an Independently Created ComputerProgram. Section 1201(f)(1) provides that, notwithstanding the prohibitions in Section1201(a)(1)(A), “a person who has lawfully obtained the right to use a copy of a computerprogram may circumvent a technological measure that effectively controls access to a particularportion of that program for the sole purpose of identifying and analyzing those elements of theprogram that are necessary to achieve interoperability of an independently created computerprogram with other programs, and that have not previously been readily available to the personengaging in the circumvention, to the extent any such acts of identification and analysis do notconstitute infringement under this title.” The language in Section 1201(f) requiring that thereverse engineering be for the sole purpose of “identifying and analyzing those elements of theprogram that are necessary to achieve interoperability of an independently created computerprogram with other programs” comes directly from Article 6 of the European Union SoftwareDirective, and appears to be the first time that language from an EU Directive has beenincorporated verbatim into the United States Code. 611610611Section 1201(e) defines “information security” to mean activities carried out to identify and address thevulnerabilities of a government computer, computer system, or computer network.Jonathan Band & Taro Issihiki, “The New Anti-Circumvention Provisions in the <strong>Copyright</strong> Act: A FlawedFirst Step,” Cyberspace Lawyer, Feb. 1999, at 2, 4. Section 1201(f) may also represent the first Congressionalrecognition of the legitimacy of software reverse engineering. Id.- 145 -