I. THE DIGITAL MILLENNIUM COPYRIGHT ACT
A. WIPO TREATIES IMPLEMENTATION
1. Circumvention of Copyright Protection Systems
Title I of the DMCA addresses "copyright protection
systems and copyright management information." These dispositions respond
to new obligations introduced in the 1996 WIPO Copyright and Performances
and Phonograms Treaties [henceforth referred to as the WIPO Copyright Treaties].
While U.S. copyright law generally met or surpassed most of the WIPO treaties'
requirements, in two respects U.S. law required adaptation. Both concerned
the modernization of the Copyright Act to meet the challenges of digital
creation, communication, and exploitation.
The first WIPO norm, set forth in article 11 of the WCT and article 18 of the WPPT, labeled "Obligations Concerning Technological Measures," requires Contracting Parties to afford "adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention ...." [FN4] Does the norm cover more than an obligation to protect authors against persons who directly circumvent technological measures? The text is not limited to persons who circumvent; moreover, as a practical matter, protection against circumvention is not likely to be "adequate and effective" if only the direct actors are covered, because in most cases, "the circumvention" will be accomplished by means of machines, devices, or computer programs. As a result, Congress determined that it was necessary to provide for adequate and effective protection both against persons who circumvent (for example by performing circumvention services), and against the manufacturers, importers and distributors of the devices (etc.) that are produced and used to circumvent. [FN5]
The technological measures that the WIPO norm protects are those that "restrict acts ... which are not authorized by the authors concerned or permitted by law." Thus, for example, the WIPO text would permit circumvention of a technological measure that restricts copying that would qualify as a fair use. In implementing the WIPO Copyright Treaties, Congress therefore confronted the problem of devising a system of legal protection of technological measures that would accommodate fair use and other copyright exceptions. At the same time, the drafters were aware that proper sensitivity to limitations on copyright protection should not result in inadequate or ineffective prohibitions on circumvention of technological measures that restrict unauthorized acts not permitted by law. The difficulty of the task of affording meaningful protection while preserving exceptions in part explains the complex and cumbersome nature of the resulting legislation.
New section 1201 of the copyright act defines three new violations: (a)(1) to circumvent technological protection measures that control access to copyrighted works; (a)(2) to manufacture, disseminate or offer, etc. devices or services, etc. that circumvent access controls; and (b) to manufacture, disseminate, or offer, etc. devices or services etc. that circumvent a technological measure that "effectively protects a right of the copyright owner ...." It is important to appreciate that these violations are distinct from copyright infringement. The violation occurs with the prohibited acts; it is not necessary to prove that the dissemination of circumvention devices resulted in specific infringements.
a. § 1201(a): Protection of technological measures controlling access to copyrighted works
This subsection sets out a right to prevent circumvention
of technology used to control access to a copyrighted work; the right is
articulated separately and treated differently from the circumvention of
technology used to protect a "right of the copyright owner" under Title
17 (for instance, to authorize or prohibit reproduction, creation of derivative
works, distribution, public performance/display - subsection (b) covers
these rights, see infra). The separation of access from rights of copyright
owners responds to the different balances struck depending on whether (a)
access to the copyrighted work is offered to the public subject to the
copyright owner's price and/or terms, or (b) access having been lawfully
obtained, members of the public now seek to reproduce/adapt/distribute/publicly
perform or publicly display the work (or portions of it).
The DMCA gives the greatest protection to copyright owners' right to control access, since it makes it a violation both (1) for users to circumvent access controls, and (2) for others to manufacture, disseminate or offer devices or services that circumvent access controls. As for post-access circumvention, while the law prohibits the manufacture, dissemination, offering etc. of devices or services, etc. that circumvent technological protection of rights under copyright (e.g., anticopying codes), the bill does not prohibit users themselves from circumventing these protections. The contrast indicates that this law tolerates direct end-user circumvention of post-access anticopying measures, to a far greater extent than it does circumvention of access controls. In the course of its journey through the legislative process, however, the prohibition on circumvention of access controls attracted an every-widening array of exceptions. [FN6] Moreover, Congress delayed implementation of the prohibition for a two-year period, [FN7] and further instructed the Librarian of Congress, in consultation with the Register of Copyrights, to identify particular classes of works whose users who would be "adversely affected by the prohibition ... in their ability to make noninfringing uses under this title of a particular class of copyrighted works." [FN8] Do these classes of works include scientific journal articles and other materials relevant to nonprofit instruction? Unfortunately, neither the statute, nor the legislative history give sufficient guidance to determining what the classes should comprise, apart from cautioning that they should be neither too broadly nor too narrowly drawn. During the three-year period following the rulemaking procedure that identifies the works, users of these works will not be subject to liability for circumventing measures that control access to the specified classes of works. The law requires that another rulemaking be conducted every three years. [FN9]
b. § 1201(a)(1): Prohibition on end-user
circumvention of access controls
The DMCA distinguishes between access to the work, and use of the work once accessed. In old technology (hardcopy) terms, the distinction might be between acquiring a copy in the first place, and what one does with the copy thereafter. The fair use concerns primarily focus on the second stage. That is, it may be fair use to make nonprofit research photocopies of pages from a lawfully acquired book; it is not fair use to steal the book in order to make the photocopies. [FN10] To that extent, the notion of "access" appears to resemble the traditional copyright concepts inherent in the exclusive distribution right. [FN11] The Supreme Court has construed this right to give the author control over the determination to grant "access" to her work, that is, to disclose and offer it to the public, for purchase if she chooses. [FN12]
i. What is "access"?
But it also seems that the "access" that section 1201(a) protects goes beyond traditional copyright prerogatives. Indeed, the text indicates that "access" is distinct from a "right of the copyright owner under this title." [FN13] The difference becomes apparent if one compares the consequences of protecting a measure controlling "... access to a work ..." with a measure controlling "... access to a copy of a work ...." The latter corresponds to "access" in the copyright sense of the right to distribute copies of the work; the former is the new right introduced in the DMCA. The following example illustrates the difference between "access to a work" and "access to a copy of a work." Suppose I purchase a CD ROM containing a copyrighted work, such as a video game. Suppose also that to view and play the game, I must register with the producer, using the modem in my computer. The producer in turn communicates a password to me. A technological measure included in the CD ROM recognizes my password, and my computer. Thenceforth, each time I wish to play the game, I must enter my password, and play the game on the same computer. This means that I cannot use that copy of the game on another computer. It also may mean, at least in theory, that I cannot communicate my password to a friend or family member to play the game on my computer, since the password protects access to the work, and my disclosure of the password is an act that circumvents a protective measure that had limited access to me.
In this scenario, by purchasing the CD ROM, I
have acquired lawful access to a copy of the work. Section 101 of the Copyright
Act defines "copies" as "material objects" in which "a work" is fixed.
The CD ROM I purchased is a material object. But I do not access "the work"
until I have entered the password (from the correct computer). Thus, when
the law bars circumvention of controls on access to the "work," "access"
becomes a repeated operation, whose controls will be substantially insulated
from circumvention under the text of section 1201(a). I would therefore
not be permitted to circumvent the access controls, even to perform acts
that are lawful under the Copyright Act, such as using my copy in another
computer or lending it to a friend - acts permitted to the owner of the
copy under the "first sale doctrine" codified in section 109(a) of the
Copyright Act, and under section 117, which allows the owner of a copy
of a computer program to use it in a computer. By contrast, had the law
barred circumvention of technological measures controlling access to "a
copy" of a work, then once I had lawfully acquired my copy, I should have
been able to use it in a computer, or to circulate that copy, without further
prohibitions imposed or reinforced by the Copyright Act. (If I want to
make or transmit additional copies, however, I would most likely be infringing
the reproduction or public performance/display rights, and might also run
afoul of post-access technological protections attached to my copy.)
How would the distinction between access to "a copy" and access to "a work" apply to online access? The online user who "accesses" a work is also making a "copy" of the work in either or both RAM and hard drive. [FN14] If the user lawfully stores the copy of the work, then its subsequent consultation should not be considered "access" to the copy, because access to a copy would already have been acquired at the time of downloading to a permanent storage medium, and it is (or should be) permitted to make a further copy within the computer as part of using the lawfully-acquired copy in conjunction with that computer. [FN15] In adopting an "access to the work" standard, Congress has placed the user who has lawfully stored a copy of an access-controlled work in the same position as a user who does not retain the copy, and who must therefore re-connect to the online source to view the work. Each viewing from the online source is a new "access" to the work. But so are viewings from a downloaded version (or, for that matter, a free-standing version such as a CD ROM). In each of these circumstances, the user may not (subject to a variety of exceptions discussed below) circumvent a technological measure that controls the user's ability to apprehend the work.
What is the justification for this apparent extension of the copyright owner's prerogatives? The WIPO texts require that signatory nations protect technological measures "that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention ...." Do either the WCT or the Berne Convention provide a right of access to a "work" in the sense of § 1201(a)? The WCT introduces a right of distribution of copies to the public, but this right addresses material (rather than electronic) copies; it would not extend beyond conferring a right to control access to a physical copy, rather than to a work. [FN16] The WCT also synthesizes the Berne Convention's various provisions on public performance into a general right of "communication to the public," including by digital delivery. [FN17] This right would appear to cover "access" to a work through online media; it is considerably less clear that it would also cover subsequent apprehension of a work once the user downloads a copy to the user's storage media, or once the user acquires a free-standing copy, such as a CD ROM. [FN18]
Since the WCT does not compel signatory countries to protect technological measures that control the breadth of "access" covered by § 1201(a), Congress has independently determined that this scope of protection is necessary to afford meaningful protection to copyrighted works in the digital environment. What supports this determination? The changing economics of exploitation of copyrighted works may supply a justification. In the digital environment, exploitation of works of authorship will differ from exploitation in the analog world. Professor Jessica Litman has observed that in the analog world, a book could not "sprout wings and fly back" after a certain number of readings. [FN19] As a result, the purchasing user paid a price commensurate with unlimited consultations of the book, or listenings of the sound recording, or viewings of the motion picture (if the film was not available for rental). In the digital world, by contrast, the price can be set to correspond to the number of times the user wishes to enjoy the work. It may, for example, be more attractive to a user to purchase a $5.00 DiVX videodisc, that permits three viewings of a film, than a $25.00 DVD videodisc that allows unlimited viewings. [FN20] But if the copyright owner is to make this marketing option available, it is necessary to ensure that the user who purchases the $5.00 videodisc cannot then circumvent the technological protection that limits the user to three viewings, in order to obtain unlimited viewings without paying the price.
Arguably, the § 1201(b) prohibition on provision of devices to circumvent measures that protect "a right of the copyright owner" (see discussion infra) could suffice to assure copyright owners that users will not be able to pay $5.00, but through circumvention obtain $25.00 of value. Section 1201(b), however, does not prohibit direct acts of circumvention; the technologically adept user thus faces no liability under that section. As to the provision of circumvention services or devices, it is not clear in this situation that a "right of the copyright owner" would be implicated. The user's viewing of the film would most likely be a private performance (i.e., there would not be a "substantial" number of viewers other than the user's family and social acquaintances), [FN21] to which the copyright owner's rights do not extend. In order to view the film, the user would be making a copy of the contents of the DiVX onto the user's RAM, but this copying might not be actionable, either. [FN22] As a result, the user would certainly be depriving the copyright owner of revenue, but that deprivation might not contravene a "right of the copyright owner," and § 1201(b) might therefore be ineffective. By contrast, if each viewing is an act of "access" to the work, then, after the third viewing, the DiVX user would be circumventing an access control, and would be in violation of § 1201(a).
Similarly, in the case of musical compositions and sound recordings, 17 U.S.C. § 1008 permits consumers to make noncommercial use of "a device or medium for making digital musical recordings ...." While a general purpose computer does not meet the definition of such a "device," a software program specially designed to make copies of digital musical recordings might. Under § 1008, then, it might not be copyright infringement to use the program in conjunction with a computer to make private copies of sound recordings, either from a free-standing medium such as a CD, or from a digital network. Circumventing a technological measure in order to engage in this kind of private copying thus would not violate a "right of the copyright owner." But if one cannot make the private copy without "accessing" the work, then circumvention would violate § 1201(a). Thus, to the extent that § 1008 applies to copying off the Internet or from free-standing digital copies onto a personal computer, access protection would trump the private copying privilege.
As a general matter, one should recognize that, in granting copyright owners a right to prevent circumvention of technological controls on "access," Congress may in effect have extended copyright to cover "use" of works of authorship (subject to the many exceptions permitting access-control circumvention). In theory, copyright does not reach "use"; it prohibits unauthorized reproduction, adaptation, distribution, and pubic performance or display (communication to the public). Not all "uses" correspond to these acts. But because "access" is a prerequisite to "use," by controlling the former, the copyright owner may well end up preventing or conditioning the latter.
c. § 1201(a)(2): Prohibition on manufacture,
etc. of devices, etc. that circumvent access controls
If users may not directly defeat access controls, it follows that third parties should not enable users to gain unauthorized access to copyrighted works by providing devices or services (etc.) that are designed to circumvent access controls. Indeed, the principal targets of the DMCA are the providers of circumvention devices, services, etc. As a general proposition, the prohibition on providing devices such as "black box" descramblers that enable members of the public to receive without paying for pay-per-view type transmissions (for example, of music or of audiovisual works), is (or should be) uncontroversial. [FN23] The question is whether the DMCA's prohibition sweeps too broadly, and ends up barring the manufacture and dissemination of devices or services that have legitimate uses other than to circumvent controls on access to copyrighted works. Too broad a prohibition may frustrate whatever legitimate activities the devices may permit. Equally importantly, too broad a prohibition may frustrate the development of useful new technologies.
Section 1201(a)(2) does not prohibit the dissemination of any device (etc.) that might be used to defeat an access control. It does not target general purpose devices (etc.) whose accidental, incidental or unwitting use results in circumvention. Nor does it bar those devices (etc.) that, while capable of, and even used for, circumvention, are primarily designed or used for other purposes. The law prohibits the manufacture, etc. of devices, services, etc., only in the following three circumstances:
(A) The device (etc.) was "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access" to a copyrighted work; or
(B) The device (etc.) was not primarily designed to circumvent, but in fact "has only limited commercially significant purpose or use other than to circumvent ..."; or
(C) The device (etc.) is "marketed" (i.e., advertised or promoted) as a device (etc.) to be used to circumvent access controls. In this case, the target of the law is the person promoting the circumventing use; it is not the manufacturer (etc.) of the device (etc.), unless that person acts in concert with the marketer. [FN24]
With respect to (B), § 1201(a)(2) does not define "only limited commercially significant purpose or use," but case law may help to flesh out what appears to be a fairly intuitive notion. For example, in A&M Records, Inc. v. Abdallah, [FN25] the defendant supplied "time-loaded," made-to-order blank audiotape cassettes. Because most of the defendant's clients purchased the tapes to make pirated music cassettes, the court attributed no legal significance to the few clients who did or might have purchased to record their own musical performances.
But is the "only limited commercially significant purpose or use other than to circumvent" standard too restrictive? To address this question, it is necessary to envision what legitimate circumventions of access controls the text might forestall. This universe is probably not very large. The most likely example may be that of a work not protected by copyright, but which is disseminated with an access control. Use of a "descrambler" to defeat the access control over this work would be lawful under the bill. But sale of descramblers is probably not therefore legitimated, since the descrambler device cannot tell the difference between protected and unprotected works, and one may imagine that by far the greater volume of sales will be to those who wish to access protected works. Thus, descrambling encrypted public domain works might well not qualify as a "commercially significant purpose or use" of the device.
This suggests that the DMCA could deprive the
public of the technological means to access public domain information.
Closer examination of the text of § 1202(a)(2), however, may permit
a happier outcome. The three alternative criteria may be read, with the
help of negative inferences, to authorize the distribution of access-circumvention
devices in certain narrow circumstances. First, § 1201(a)(2)(A) appears
to establish a subjective criterion: did the producer of the device create
it for the purpose of defeating access controls on copyrighted works? If
the producer responds that she created the device for the purpose of defeating
access controls on public domain works (and the copyright owner cannot
prove otherwise), then subsection (A) would not bar the device's dissemination.
That, of course, does not mean that the device can be freely marketed.
Subsection (B) imposes an objective criterion: whatever the device's producer
intended, how is the device in fact being used? If in fact the use of the
device to descramble public domain works is insignificant, then the device
violates the DMCA. If, by contrast, the device has a commercially significant
use to access encrypted public domain documents, then subsection (B) would
not prohibit its sale.
Under what circumstances would this use be genuinely significant? One might imagine that the problem with the public domain argument for circumvention of access controls is that, for most manufacturers, sellers and users, it is probably pretextual. In the name of descrambling a public domain motion picture, a "black box" is distributed to users who are more likely to descramble all of Disney. [FN26] If, by contrast, the circumventer category were limited to those for whom public domain access is the sole activity, then the appropriate users and uses would not be prejudiced, and the public domain tail would not wag the dog of generalized descrambling of protected works. This suggests that the market for particular descrambling devices or services cannot be the public at large, but might be confined to an identifiable group whose public domain access claims are more plausible (and who can be trusted not to misuse the devices to access copyrighted works without authorization). With respect to that market, there would be a "commercially significant" use of the device or service to access public domain materials. This analysis also comports with subsection (C), since the device would be "marketed" not as a circumvention device for accessing copyrighted works, but as a device to access the public domain.
Who would make up this group? Librarians and members of research institutions form an identifiable group who can credibly claim to employ circumvention devices in order to access public domain documents. But one may be somewhat skeptical of the further claim that these persons will employ the devices only to access public domain materials. If their use could be so restricted, then a university's computer services department could lawfully assist a professor, student, or librarian who seeks to decrypt an unprotected work. Similarly, a library could afford its patrons access to the decrypted public domain work, either on a walk-in basis, or even by making the work digitally available to remote users. [FN27]
Perhaps one might meet the requirement, that the use of the device have commercial significance other than to circumvent access protections on copyrighted works, in some way other than distinguishing by type of user. If the machine itself could distinguish between copyrighted and public domain elements, and accordingly decrypted only the access code corresponding to the public domain portion, then its distribution would be legitimate under § 1201(a)(2). But this will work only if information accompanying the work identifies what is protected, and what is public domain. Since content- providers may not be eager to furnish this information, the Copyright Office regulations defining copyright management information [FN28] would need to require that copyright owners who incorporate copyright management information must encode copies of the works to identify the portions in which copyright is claimed. That way, if the encrypted document is not protected by copyright, it should not bear the code that will alert the machine to the work's protected status. The machine could then be freely distributed because it would not descramble codes that protect copyrighted works.
Problems nonetheless persist. Suppose that information providers, having come to the conclusion that, under certain circumstances, circumvention devices may be distributed if their use is confined to accessing public domain works, were careful not merely to encrypt raw public domain documents, but instead packaged the documents with copyrightable trappings, such as a new introduction, or with minimally original reformatting. [FN29] The circumvention device now would target a copyrighted work, however scant the covering. Does that mean that the device, even if needed to access the unprotected work, now fails under subsection (A), because it is "primarily designed to circumvent" access controls on copyrighted works? If this is correct, then § 1201(a)(2) would not only preclude spurious invocations of the public domain, it would also bar the distribution of any device intended to decrypt public domain works that came in a copyrightable package. But were that the ineluctable interpretation of § 1201(a)(2), then the copyrightable fig leaf a producer affixes to an otherwise unprotectable work would, as a practical matter, completely obscure the public domain nakedness of the documents. Dog-wagging is no more desirable when waged by copyright owners than by users.
One might argue that manufacture or distribution of a circumvention device in these circumstances is not primarily designed to circumvent controls on access to copyrighted works, since the primary target is the public domain work. Similarly, if distribution of the device remains confined to the library and research community, then, arguably, the commercially significant use would be to access public domain, rather than copyrighted, documents. These arguments are unconvincing for at least two reasons, however. First, unless the public domain work is accessible separately from the copyrighted work to which it is joined, the device cannot access the public domain work without circumventing the protection attached to the copyrighted work. Thus the device is primarily designed to circumvent in a manner prohibited by subsection (A). Since the § 1201(a)(2) criteria are alternative, rather than cumulative, failure to pass muster under any of the subsections will doom the device. As a result, even were the producer to propose to limit the distribution of the device to the library and research community, the device probably should not be manufactured in the first place. Second, the argument does not afford a means to distinguish the pretextual copyrightable fig leaf from a substantial authorship contribution. For example, what if the copyrightable work incorporating the public domain documents is a compilation or collective work containing both copyrightable and public domain elements? Or, more generally, what if the circumventer claims to produce or use the device in order to access unprotected ideas or facts within a protected work? If all of these claims also justified access-circumvention, then little would be left of the prohibition. [FN30] As we will see, some of the specific exceptions to § 1201(a) address some of these situations; by implication, however, § 1201(a) does not authorize a general exemption for devices designed or used to circumvent in order to access public domain elements contained within copyrighted works.
How troublesome is this? After all, the copyright
law does not oblige publishers to give away copies of the plays of Shakespeare.
But, because "access" in the DMCA means more than access to the copy, the
publisher can now charge not only for acquisition of an electronic edition
of Shakespeare (assume no copyrightable value added to the text of the
plays), but for each reading of Much Ado, and readers who have lawfully
acquired the copy may not elude those charges. Do the DMCA's strict controls
on access therefore result in overprotection, or are they a necessary adaptation
to the digital world? That is, do traditional categories of rights under
copyright fail to respond to the way works are (or will be) exploited in
digital media, so that new rights are needed? "Access" probably will become
the most important right regarding digitally expressed works, and its recognition,
whether by the detour of prohibitions on circumvention of access controls,
or by express addition to the list of exclusive rights under copyright,
may be inevitable. But if "access" is a right (express or de facto), it
is also necessary to consider what limitations that right should encounter.
As we shall see next, Congress has provided a variety of exceptions permitting
users to circumvent access controls, but the exceptions betray their origins
in interest-group lobbying; no coherent vision of appropriate limits on
the new "access" right underlies their articulation.
[FNa1].Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University School of Law. Thanks to Professor Jessica Litman, to Shira Perlmutter, Esq., Associate Register of Copyrights for Policy and International Affairs, to Bruce Joseph, Esq., and to Andrew Thompson, Columbia Law School Class of 1999. This Article is adapted from Jane C. Ginsburg, News From the U.S., 179 REVUE INTERNATIONALE DU DROIT D'AUTEUR [R.I.D.A.] 143 (1999). (return to text)
[FN4].WCT, art. 11; WPPT, art. 18. (return to text)
[FN5].The European Commission, in article 6 of its Proposal for a European Parliament and Council Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society, COM(97)628 final, 1998 O.J. (C 108) 6, also set forth prohibitions against the manufacture and distribution of devices "which have only limited commercially significant purpose or use other than circumvention ...." (return to text)
[FN6].See 17 U.S.C. § 1201(d)-(j).(return to text)
[FN7].Id. § 1201(a)(1)(A). (return to text)
[FN8].Id. § 1201(a)(1)(C). (return to text)
[FN9].See id. (return to text)
[FN10].Cf. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (rejecting fair use defense because, inter alia, defendant copied from a "purloined manuscript").(return to text)
[FN11].See 17 U.S.C. § 106(3). (return to text)
[FN12].See Harper & Row, 471 U.S. 539. (return to text)
[FN13].Compare 17 U.S.C. § 1201(a) and § 1201(b). See also id. § 1201(f), (g) (permitting circumvention for purposes of reverse engineering and encryption research if, inter alia, the user "lawfully obtained the right to use a copy ...").(return to text)
[FN14].In U.S. copyright law, "RAM copying" is considered to effect a reproduction. See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). The DMCA appears to confirm this interpretation in its Title III, which introduces an amendment to § 117 permitting the owner or lessee of a computer to "make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine ...." 17 U.S.C. § 117(c). (return to text)
[FN15].Cf. id. § 117 (owner of a copy of a computer program may make additional copies "as an essential step in the utilization of the computer program in conjunction with a machine ..."). (return to text)
[FN16].See WCT, art. 6 and accompanying Agreed Statement. (return to text)
[FN17].See id. art. 8 ("[A]uthors of literary or artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."). (return to text)
[FN18].The European Parliament and the European Commission, however, have also proposed to implement WCT, art. 11 by protecting access controls. See Legislative resolution embodying Parliament's opinion on the Proposal for a European Parliament and Council Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (COM(97)628 - C4-0079/98 - 97/0359(COD) (Codecision procedure: first reading) (Jan. 28, 1999). Amendment 31 to article 6 of the Draft Directive defines "effective technological measures" to mean "any device, product or component incorporated into a process, device or product that in the ordinary course of its operation controls access to a work or otherwise prohibits or inhibits the infringement of any copyright or rights related to copyright ...." The Commission has reworded the definition, but has adopted the proposition that access-control measures are covered. See art. 6.2 of the modified proposed Directive <http://europa.eu.int/eurlex/en/com/dat/1997/en_597PC0628.html> (visited May 17, 1999). (return to text)
[FN19].Jessica Litman, Reforming Information Law in Copyright's Image, 22 U. DAYTON L. REV. 587, 601 (1997).(return to text)
[FN20].Joel Brinkley, New Recorded Film Format Draws Criticism from Rivals, N.Y. TIMES, Oct. 12, 1998, at C5. (return to text)
[FN21].See 17 U.S.C. § 101 (definition of to "perform" "publicly"). (return to text)
[FN22].Section 117 permits owners of copies of computer programs to make additional copies in conjunction with the use of the copy in the machine; RAM copying in the case of the DiVX would be excused if one interpreted § 117 to extend not only to computer programs, but also to any digitally expressed work. It is not clear that the copy owner's RAM copying privilege does or should extend so far. In any event, § 117 applies only to owners of copies; licensees apparently do not enjoy the RAM copying prerogative. If licensees can be excluded, the copyright owner can avoid § 117 by leasing, rather than selling the DiVX discs. (return to text)
[FN23].Cf. 47 U.S.C. §§ 553, 605 (1998) (prohibiting sale or distribution of devices affording unauthorized access to cable or satellite signals). (return to text)
[FN24].See 17 U.S.C. § 1201(a)(2)(A)-(C). (return to text)
[FN25].948 F. Supp. 1449 (C.D. Cal. 1996). (return to text)
[FN26].Note that the Communications Act prohibitions on "black boxes" do not exonerate manufacturers and distributors whose customers promise to descramble only public domain motion pictures carried by cable or satellite services. (return to text)
[FN27].If information providers did not encrypt public domain documents, then manufacture and distribution of access-circumvention devices would fail under all the subsections of § 1201(a)(2). (return to text)
[FN28].See 17 U.S.C. § 1202(c)(8), discussed infra. (return to text)
[FN29].See, e.g., Maljack Prods., Inc. v. UAV Corp., 964 F. Supp. 1416 (C.D. Cal. 1997), aff'd on other grounds sub nom. Batjac Prods. Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998) (panning and scanning). (return to text)
[FN30].The Copyright Office
might, however, require as part of copyright management information that
copyright owners distinguish copyrightable from public domain components;
circumvention devices that decrypted only the public domain components
could legitimately be produced and distributed under § 1201(a)(2).
This marking requirement would be feasible only where the public domain
elements are not the objects of copyrightable added value, such as editorial
alterations or enhancements. (return