Re: [dvd-discuss] 1201(b)

["Ernest Miller" <ernest.miller(at)aya.yale.edu>]

This issue isn't clear, but available precedent seems to indicate that
courts would heavily favor the copyright holders in most cases.

----- Original Message -----
From: "Michael Columbus" <columbmt@notes.udayton.edu>
To: <dvd-discuss@eon.law.harvard.edu>
Sent: Sunday, February 17, 2002 4:24 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?