Table of Contents:

Introduction to the online version


Preface to the printed version

Copyright Overview

Software Copyright

Digital Copyright

- Why Digital Works are Different

- A Bad Fit

- Protecting Digital Information

- What Not to Protect

- DMCA Safe Harbors

   - Notice and Takedown and Putback

   - Mere Conduits

   - Caching

   - Stored Information

   - Directories

   - Other Safe Harbor Requirements

   - Special Rules for Schools

- Protection Through Technology

- DMCA Technological Protections

   - Trafficking

   - Accessing

   - Distinction From Copyright

   - Rights Management

   - Permitted Circumventions

   - Reverse Engineering

   - Encryption Research

   - Code as Speech

   - Security Testing

Patent Overview

Software Patents

Full treatise table of contents

Home             Copyright/Other Information             Send Comments

Chapter 3: Copyright of Digital Information

IV.E.3. Distinction From Copyright

It is important to understand that although the anticircumvention and rights management provisions of the DMCA are closely related to copyright, in that they apply to works protected by copyright, but they are separate from copyright law (except for being codified in the same title of the United States Code). Even the words used to characterize the unlawful acts are different – you “infringe” a copyright, but “violate” the anticircumvention or rights management provisions.

Congress made it clear that it didn’t intend these provisions, and the case law that develops from them, to affect the copyright statutes and their case law.

(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

(2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof. {FN162: 17 U.S.C. §1201(c)}

IV.E.4. Fair Use

At the time the anticircumvention provisions were being debated, there was concern that they would negate fair use of a copyrighted work, because if you cannot access the underlying copyrighted work without violating the anticircumvention provisions, you can’t make a fair use of the work. But if you allow circumvention when the use is fair, there is no way to block the distribution of circumvention devices, since everybody selling them would say that they are to be used only for noninfringing activities (and wink when they say it).

The anticircumvention provision does not negate fair use of material that is protected by an access control mechanism. While it may stop a creator of a new work from copying from the protected work with a couple of clicks of a mouse, it can’t stop that creator from retyping the passage. The Second Circuit, in Universal City Studios v. Corley, {FN163: 273 F.3d 429, 60 USPQ2d 1953 (2d Cir. 2001)} stated:

The Appellants have provided no support for their premise that fair use of DVD movies is constitutionally required to be made by copying the original work in its original format. Their examples of the fair uses that they believe others will be prevented from making all involve copying in a digital format those portions of a DVD movie amenable to fair use, a copying that would enable the fair user to manipulate the digitally copied portions. One example is that of a school child who wishes to copy images from a DVD movie to insert into the student’s documentary film. We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original. Although the Appellants insisted at oral argument that they should not be relegated to a “horse and buggy” technique in making fair use of DVD movies, the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user’s preferred technique or in the format of the original. {FN164: 273 F.3d at 459, 60 USPQ2d at 1973-1974}

In United States. v. Elcom, {FN165: 203 F.Supp.2d 1111, 62 USPQ2d 1736 (N.D. Cal. 2002)} a recent district court decision regarding the criminal liability of a Russian company that was distributing a program for circumventing the protection mechanism for Adobe electronic books, the trial judge (who had also written the decision in the landmark Netcom case {FN166: 907 F.Supp. 1361, 37 USPQ2d 1545 (N.D. Cal. 1995)} as well as a number of other computer-technology-related cases) reached the same conclusion as the Second Circuit: that the DMCA does not eliminate fair use, although it might make it less convenient. He also upheld the DMCA against a number of constitutional and other challenges.

Any restrictions imposed by technological measures supported by the DMCA are unlikely to prevent the creation of works for “criticism, comment, news reporting, teaching, scholarship, or research” {FN167: See 17 U.S.C. §107} that are transformative rather than simply copies, held to be a touchstone for fair use by the Supreme Court in Campbell v. Acuff-Rose Music. {FN168: 510 U.S. 569, 29 USPQ2d 1961 (1994)} The creation of a transformative work that is truly a fair use is not an infringement of copyright, and therefore does not run afoul of Section 1201(b) {FN169: 17 U.S.C. §1201(b)} even if a protection mechanism is circumvented. And, since “to invoke the fair use exception, an individual must possess an authorized copy of a literary work,” {FN170: Atari v. Nintendo, 975 F.2d 832, 843, 24 USPQ2d 1015, 1024 (Fed. Cir. 1992)} the creator of the transformative work can simply look at that copy while creating his transformative work, which should not require circumvention in violation of Section 1201(a)(1). {FN171: 17 U.S.C. §1201(a)(1)}

IV.E.5. What Anticircumvention Isn’t

Congress also added two other subsections saying what the anticircumvention provisions were not, just for good measure.

(3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

(4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products. {FN172: 17 U.S.C. §1201(c)}

Paragraph (3) is particularly important, since it makes it clear that there is no design mandate in the anticircumvention provisions except not to produce a circumvention device. The mere fact that a technological measure has been developed does not require manufacturers of existing equipment or developers of new equipment to include that technological measure in their product, as long as they avoid acts that would be considered trafficking in a circumvention device.

Some content providers, unhappy with the compromises made in the DMCA, are now supporting legislation that would mandate a protection mechanism for every digital device that can reproduce copyrighted works (which is just about every device that contains a microprocessor that can load a program or data into its memory). {FN173: See, for example, the Consumer Broadband and Digital Television Promotion Act, S. 2048, introduced in the 107th Congress} It is unlikely that such a protection mechanism would be any more effective than the anticircumvention provisions of the DMCA as long as there were still computers that did not have the mandated protection mechanism. And it is economically unfeasible to replace each of the hundreds of millions of personal computers in the world.

Paragraph (4) is just window dressing, since Congress can’t pass a law that diminishes the rights of free speech or a free press and have it upheld in court, much as it sometimes may want to.

Next section: Rights Management

Copyright © 2002, Lee A. Hollaar. See information regarding permitted usage.