The Digital Millennium Copyright Act amended title 17 of the United States Code to add Chapter 12, which among other things prohibits circumvention of access control technologies employed by or on behalf of copyright owners to protect their works.
Specifically, subsection 1201(a)(1)(A) provides, inter alia, that ‘‘No person shall circumvent a technological measure that effectively controls access to a work protected under this title.’’
|“||descrambling, decrypting, or otherwise avoiding, bypassing, removing, deactivating, or impairing a technological measure, without the authority of the copyright owner, that effectively controls access to a copyrighted work.
manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, or component, that is primarily designed or produced for the purpose of circumventing copyright protection measures.
Enacted in 1998, the law became effective in 2000. The DMCA’s anticircumvention provisions have proven to be controversial. Proponents argue that they are essential to protect the creation and distribution of, and the market for digital intellectual property (IP), while critics argue that they extend the copyright monopoly beyond its intended scope and thwart the public’s ability to access materials for permissible purposes.
The statute is best known in the context of encryption programs and access control “gates” interposed between the public and copyrighted digital entertainment media, e.g., music and motion pictures. Here, critics of the DMCA argue that the anticircumvention provisions allow copyright holders to impose new and overly restrictive conditions on content users. This new layer of IP protection has been referred to as “paracopyright.” It refers to the ability of content owners to use conditions for access in order to extend control over usage of copyrighted work.
The anticircumvention provisions of the DMCA establish offenses wholly distinct from copyright infringement. In other words, reverse engineering that may be (or have been) permissible under the Copyright Act may not be permissible under the DMCA. To the extent that the DMCA’s anticircumvention provisions address the narrow issue of manipulating — or circumventing — technology (whether or not it is copyrightable in its own right) to access copyrighted technology, its impact on fair use, particularly the employment of reverse engineering, may have a significant impact in the marketplace.
The practice of reverse engineering allows others to identify and analyze the creative versus the functional aspects of copyrighted software and to utilize them to some degree. In some contexts, reverse engineering has been held by the courts to be a fair use of copyright-protected property. TThe DMCA contains an express exemption for reverse engineering:
|“||for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs[.]||”|
How the practice and use of reverse engineering for commercial goals relates to the protections against circumvention is of interest to many. They are concerned with the extent to which access control technology is likely be employed to extend (or attempt to extend) a copyright holder’s control over durable goods with copyrighted components and the secondary markets for such goods.
The remedies for a violation of the anti-circumvention provisions include:
- (1) Temporary and permanent injunctions to prevent or restrain a violation of this offense, but in no event shall the court impose a prior restraint on free speech or the press protected under the First Amendment to the Constitution.
- (2) At any time while an action is pending, the court may order the impounding of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation.
- (3) Recovery of costs by or against any party other than the United States or an officer thereof.
- (4) Reasonable attorney’s fees to the prevailing party.
- (5) The court may order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or that has been impounded.
- (6) Actual damages and any additional profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages.
- (7) Statutory damages (at the election of the complaining party in lieu of actual damages), as follows:
- For each violation of 17 U.S.C. §1201, in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.
- For each violation of 17 U.S.C. §1202, in the sum of not less than $2,500 or more than $25,000.
- (8) For repeated violations: If the injured party proves, and the court finds, that a person has violated 17 U.S.C. §§1201 or 1202 within three years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.
- (9) For innocent violations: The court in its discretion may reduce or remit the total award of damages in any case in which the violator proves, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation.
- Pub. L. No. 105–304 (1998).
- 17 U.S.C. §1201.
- Id. §1202.
- While a copyright owner’s exclusive rights in a copyrighted work is set forth at 17 U.S.C. §106, exceptions to exclusive rights are set forth at, e.g., 17 U.S.C. §§ 107, 108, 110, 111, 117.
- The statute was widely publicized in a successful suit by movie studios to prevent the posting over the Internet of a code to circumvent the Content Scrambling System (CSS), an encryption program for digital motion pictures. Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001).
- H.R. Rep. 105-551, Part 2, 105th Cong., 2d Sess. 24-25 (1998) quoting a letter from copyright law professors arguing that enactment of anticircumvention legislation “would represent an unprecedented departure into the zone of what might be called paracopyright — an uncharted new domain of legislative provisions designed to strengthen copyright protection by regulating conduct which traditionally has fallen outside the regulatory sphere of intellectual property law.”
- 17 U.S.C. §1201(f)(1).