[dvd-discuss] 1201(b)

["Michael Columbus" <columbmt(at)notes.udayton.edu>]

Suppose an specific encryption device, which controls a “right of a
copyright owner” , is employed on several different types of works. 60% of
the works the device is employed on currently are in the public  domain. 40%
of the works the device controls access to are subject to copyright
protections. Company A develops, markets, and sells a product which
circumvents the protective technology. The company’s primary purpose for the
development of this product was to allow the owners of the public domain
materials to allow “full use” of those public domain materials. Does this
company violate 1201(b)?

This differs from the Elcom case because it isn’t fair use at issue. The
issue is: when does 1201(b) prohibit the development of a circumvention
technology when the circumvented technological device protects copyright
owners rights as well as the rights the consumer has to public domain
materials, and when this circumvented technology is employed on a potpourri
of materials in the marketplace?

1201(b)(1)(A) provides:

“is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively protects a
right of a copyright owner under this title in a work or a portion thereof.”

Company A’s product is “primarily designed” to circumvent protection of
public domain material. Essentially, the product enables the consumer to
make full use (not fair use because the material is in the public domain) of
the material. Although company A’s product is capable of circumventing
protection which protects the copyright owner’s rights, this is not its
“primary design”. Can company A be held liable? If not, does interpretation
of the “primarily designed” language depend on the proportion of copyrighted
work and public domain work in the marketplace which is protected by the
technological measure? For example, if 100% of the material, protected by
the technological device, in the marketplace was public domain, I don’t see
how any circumvention technology could be in violation of 1201(b). What if
the mix was 90% (public domain)/ 10% (copyrighted work)?

It seems to me the argument for a violation of 1201(b) becomes stronger when
the probabilities that the technological device will be used for prohibited
purposes rises (i.e. 95% (copyrighted works)/5% (public domain)).

If this is the case, how will this law be enforced? Will studies be required
for every technological device to determine the public domain/copyrighted
work ratio? How will companies know what is illegal or not illegal?