Advanced Copyright Issues on the Internet - Fenwick & West LLP

Although Section 1201(f)(3) clearly contemplates an exemption for distribution to thirdparties of the “technological means” referenced in Section 1201(f)(2), as well as the“information” gleaned from reverse engineering under Section 1201(f)(1), the same issues of thescope of “technological means” intended to be within the exemption arise as in Section1201(f)(2). As noted, the <strong>Copyright</strong> Office seems to read Section 1201(f)(3) broadly to permitthe distribution of independently developed computer programs that circumvent thetechnological protection measures of other programs in order to interoperate with such otherprograms. The legislative history quoted above, however, seems to read Section 1201(f)(3) morenarrowly as directed to distribution of reverse engineering “tools” or information to third partydevelopers who may be hired to assist in the development of an independent computer program,as opposed to a distribution of a competitive product into the marketplace.These ambiguities in the scope of the Section 1201(f) exemptions will need to beresolved over time through litigation. In addition, it is worth observing that, although Section1201(f) provides useful exemptions, it leaves open the issue of whether circumvention of accessrestrictions in order to perform reverse engineering for purposes other than interoperability, suchas error correction, is prohibited. The <strong>Copyright</strong> Office’s exemption rulemaking procedures mayafford a mechanism to further flesh out or clarify the Section 1201(f) exemptions.Several cases have adjudicated the scope of the Section 1201(f) exemption:(i)Universal City Studios Inc. v. ReimerdesIn Universal City Studios, Inc. v. Reimerdes, 622 discussed in further detail in SectionII.G.1(m)(4) below, the court rejected the applicability of Section 1201(f) to the defendants’posting on their Web site of, and posting links to, a descrambling computer program known as“DeCSS,” which circumvented the encryption of movies stored in digital form on a digitalversatile disk (“DVD”) encoded with the industry standard Content Scramble System (“CSS”).The defendants argued that DeCSS had been created to further the development of a DVD playerthat would run under the Linux operating system, as there allegedly were no Linux-compatibleplayers on the market at the time. 623 They further contended that DeCSS was necessary toachieve interoperability between computers running the Linux operating system and DVDs, andthat the exception of Section 1201(f) therefore applied. 624The court rejected this argument for several reasons. First, Section 1201(f)(3) permitsinformation acquired through reverse engineering to be made available to others only by theperson who acquired the information, and the defendants did not themselves do any reverseengineering (DeCSS had been created by a third party). Even if the defendants had authoredDeCSS, the court ruled that Section 1201(f)(3) would allow the dissemination only ofinformation gleaned from the reverse engineering and solely for the purpose of achievinginteroperability as defined in the statute (which was not the reason the defendants posted622623624111 F. Supp. 2d 294 (S.D.N.Y. 2000).Id. at 319.Id. at 320.- 150 -