DMCA Exemptions to the Prohibition on Circumvention

Background
Congress passed the Digital Millennium Copyright Act in 1998, in part, to help copyright owners protect their exclusive rights against infringement facilitated by digital technologies, including the Internet. Section 1201 of the DMCA outlaws circumvention of any access control devices, such as password codes, encryption, and scrambling, that copyright owners may use to protect copyrighted works. The DMCA’s prohibition on circumvention extends to both the act of circumventing access control devices and trafficking in devices that may be used for this purpose.

The DMCA’s prohibition on circumvention is not absolute, however. Much like the way in which the Copyright Act limits copyright owners’ exclusive rights with the doctrine of fair use, the DMCA allows for circumvention in certain limited circumstances. First, the DMCA includes statutory exceptions, providing that circumvention is not unlawful when &mdash;

disseminate personally identifying information about his or her activities.
 * a library, archive, or educational institution accesses a commercial work only to make a decision about purchasing that work;
 * a federal, state, or local law enforcement officer accesses a work in the course of a lawful investigation;
 * a person who has lawfully obtained use of a computer program accesses a particular portion of the program solely to identify and study elements of the program that are necessary for interoperability and that have not been previously available to him or her;
 * a person who made a good faith effort to obtain permission accesses a lawfully obtained published work to conduct encryption research, provided that doing so does not otherwise violate the Copyright Act or the Computer Fraud and Abuse Act (Pub. L. No. 99-474); or
 * a person identifies and disables access control devices that also collect or

Second, the DMCA establishes a rulemaking proceeding, wherein the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, may exempt for three years a “particular class of copyrighted works” from the DMCA’s prohibition on circumvention. According to the legislative history of the DMCA, the relatively short duration of these exemptions reflects Congress’s intent that the “§ 1201 rulemaking” functions as a “fail safe,” monitoring developments in the marketplace for copyrighted works and temporarily waiving enforcement of the prohibition on circumvention in response to those market changes.

Although these triennial exemptions apply to the DMCA’s anti-circumvention provision, they do not affect the DMCA’s prohibition on trafficking in devices that facilitate circumvention. Thus, while the act of circumventing a technological protection measure that controls access to an exempted class of work is not itself a violation of the DMCA during the three-year period, the making and distribution of technology that enables that circumvention is still prohibited and the exemptions cannot be invoked as a defense to an action brought under the DMCA’s anti-trafficking ban. Furthermore, the exemptions only apply to persons making non-infringing uses of the exempted classes of works &mdash; an individual who circumvents an access control to engage in copyright infringement will still be liable for those infringing acts.