Re: [dvd-discuss] 1201(b)

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

The interesting         question is what happens when the USSC realizes 
that not only is Congress trying to overturn a ruling of theirs but also 
by doing so going dangerously past the point where fair use is possible 
into an area that is a "suicide pact with the Constitution" to quote Judge 
Lewis Kaplan.




"doug.hudson" <doug.hudson@cox.net>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
02/18/02 08:10 AM
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        Subject:        Re: [dvd-discuss] 1201(b)


According to the legislative notes, one of the purposes of 1201(b) was to
reverse the presumption of the betamax case:  its no longer whether the
device has a substantial non infringing use, but whether it is primarily
designed to circumvent a technological measure, where that technological
measure effectively protects a copyrighted work.  By this 
standard-shuffling
language, it doesn't matter if 90% of the works protected by the measure 
are
public domain.  Since the technological measure does effectively protect
copyrighted works (even if only 10% of the works protected are 
copyrighted)
and the device is designed to circumvent that technological measure, it is
banned under 1201(b).

This assumes that courts will not "read in" the betamax case requirement
that the device also have no substantial noninfringing sue... but so far
they've been more than happy to treat 1201(b) as a legislative override of
the traditional test.

Its even less likely that a court could read in the betamax requirement
since other parts of 1201 actually have three disjunctive requirements for
banning decryption devices, where only one of them is the betamax case.

-dh

----- Original Message -----
From: "Michael Columbus" <columbmt@notes.udayton.edu>
To: <dvd-discuss@eon.law.harvard.edu>
Sent: Sunday, February 17, 2002 1:24 PM
Subject: [dvd-discuss] 1201(b)


> 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?
>