Advanced Copyright Issues on the Internet - Fenwick & West LLP

prevent or restrict the same, and the circumvention is carried out solely to prevent suchcollection or dissemination. If a technological measure is disclosed to a user as not beingcapable of collecting or disseminating personally identifying information, then the exception ofSection 1201(i) does not apply.(11) Security TestingSection 1201(j) provides that it is not a violation of the prohibitions of Sections1201(a)(1)(A) and 1201(a)(2) if a person is engaged in “security testing,” which is defined tomean accessing a computer, computer system, or computer network solely for the purpose ofgood faith testing, investigating or correcting a security flaw or vulnerability with theauthorization of the owner or operator, provided that such act does not otherwise constitute aviolation of applicable law (including the Computer Fraud and Abuse Act of 1986).(12) Copy Restrictions To Be Built Into VCRs and CamcordersSection 1201(k) dictates that certain technological capabilities be built into consumeranalog video cassette recorders (VCRs) and camcorders (professional analog video cassetterecorders are exempted) to protect certain analog television programming and prerecordedmovies. Specifically, effective 18 months after enactment of the DMCA, most formats ofconsumer analog 656 VCRs and camcorders must contain one of two forms of copy controltechnology in wide use in the market today – either the “automatic gain control technology”(which causes distortion in the images upon playback) or the “colorstripe copy controltechnology” (which causes distracting visible color stripes to appear through portions of theviewable picture in normal viewing mode). Effective immediately, Section 1201(k) alsoprohibits tampering with these analog copy control technologies to render them ineffective. TheConference Report accompanying H.R. 2281 657 states that Congress intended this Section toprohibit the manufacture and sale of “black box” devices and software “hacking” that defeatthese copy control technologies.Section 1201(k) defines certain specific encoding rules that such devices must implementin order to preserve the capability to perform long-standing consumer home taping practices.Specifically, such devices cannot limit the copying of traditional broadcasts of programmingthrough basic or extended basic tiers of programming services, although they may limit thecopying of pay-per-view, near video-on-demand or video-on-demand transmission, or contentstored on prerecorded media, as well the making of second generation copies where the originaltransmission was through a pay television service (such as HBO, Showtime or the like).656657Page 68 of the Conference Report states, “The conferees also acknowledge that numerous other activities areunderway in the private sector to develop, test, and apply copy control technologies, particularly in the digitalenvironment. Subject to the other requirements of this section, circumvention of these technologies may beprohibited under this Act.”H.R. Rep. No. 105-796, at 78 (1998).- 158 -