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   SYMPOSIUM: Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to
   Be Revised

   By Pamela Samuelson*
 

 
   © 1999 Pamela Samuelson.
 
   * Professor of Information Management and of Law, University of California at Berkeley; Co-Director of the
   Berkeley Center for Law and Technology. This paper is an outgrowth of work initially done for an Emory Law
   School conference on the law of cyberspace held in February 1996. The draft article produced for that
   conference entitled Technical Protection for Copyrighted Works discussed a 1995 legislative proposal for
   regulating the circumvention of technical protection systems. I am deeply indebted to Benjamin Black who was
   my research assistant during preparation of this draft. He subsequently collaborated with me on a derivative
   work of that paper. Although that project was never completed, this article builds on the base of that
   collaboration. I am also grateful for comments on this draft from Hal Abelson, Jonathan Band, Yochai Benkler,
   Julie Cohen, Gideon Frieder, Joan Feigenbaum, Bob Glushko, Peter Huang, Laurel Jamtgaard, and Kurt Opsahl.

   SUMMARY:
   ... The Digital Millennium Copyright Act of 1998 ("DMCA") prohibits the circumvention of technological
   protection measures used by copyright owners to control access to their works. ... Some representatives of
   major copyright industries who testified at a Congressional hearing on this legislation expressed the view that
   fair use should not be an acceptable reason to "break" a technical protection system used by copyright
   owners to protect their works. ... It also proposed a moratorium on the anti-circumvention rules so that a
   study could be conducted about the potential impact of anti-circumvention rules on fair use, the public
   domain, and other noninfringing uses of copyrighted works. ... The only way to find out whether the copyright
   owner's suspicion is valid may be to circumvent the technical protection system to get access to the
   encrypted material. ... It is, however, difficult to believe that most judges would find providing either software
   or information to enable circumvention of this component of a technical protection system to fall within the
   DMCA anti-device rules. ... This creates a potential for "strike suits" by nervous or opportunistic copyright
   owners who might challenge (or threaten to challenge) the deployment of a new information technology tool
   whose capabilities may include circumvention of some technical protection system. ...

   TEXT:
    [*519]

   Abstract
 

 
   The Digital Millennium Copyright Act of 1998 ("DMCA") prohibits the circumvention of technological protection
   measures used by copyright owners to control access to their works. It also bans devices whose primary
   purpose is to enable circumvention of technical protection systems. The Clinton administration proposed these
   anti-circumvention rules as implementations of U.S. obligations under the World Intellectual Property
   Organization Copyright Treaty. However, the DMCA's provisions are significantly broader than the treaty
   required. They violate the Administration's stated goal of only imposing "predictable, minimalist, consistent, and
   simple" regulations on the budding digital economy.

   Although Congress heeded some concerns of digital economy firms by crafting certain exceptions to authorize
   legitimate circumvention, those exceptions are overly narrow and shortsighted. They should be supplemented
   by a more general "other legitimate purposes" exception. The DMCA's anti-device provisions are, moreover,
   overbroad and unclear, especially on the question whether it is legal to develop a technology necessary to
   engage in a privileged act of circumvention (e.g., a fair use). Either Congress or the courts will be forced to
   constrain the reach of the anti-device rules so as not to undermine Congressional intent to preserve fair uses
   and so as not to harm competition and innovation in the information technology sector. Finally, though the
   DMCA provides  [*520]  for a study of one class of potentially harmful impacts of the anti-circumvention rules,
   this study needs to be broadened to consider the full impact of this unprecedented legislation.
 
 

   I. Introduction
 
   The Clinton Administration's Framework For Global Electronic Commerce aims to promote the development of a
   vast global market in which electronic contracts will be made for delivery of electronic information products
   and services via digital networks which will be paid for with electronic currencies. n1 The Framework
   simultaneously encourages private investment and entrepreneurship, urges governments at all levels to act
   with restraint in considering regulations of the emerging digital economy, and argues for international
   cooperation in adopting consistent policies that will promote this commerce. n2 The Commerce Department's
   First Annual Report on the Framework initiative indicates that this initiative has  [*521]  met with some
   success. n3 Passage of the Digital Millennium Copyright Act ("DMCA") n4 is among the successes claimed in
   this report. n5
 
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   n1. See William J. Clinton & Albert Gore, Jr., A Framework for Global Electronic Commerce (1997), available at
   <http://www.iitf.nist.gov/eleccomm/ecomm.htm> [hereinafter Framework].

   n2. See id. at 2-4.

   n3. See U.S. Gov't Working Group on Elec. Commerce, First Annual Report (1998), available at
   <http://www.doc.gov/ecommerce/E-comm.pdf> [hereinafter First Annual Report].

   n4. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).

   n5. See First Annual Report, supra note 3, at 2.
 
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   The Commerce Department may be correct in thinking that the interests of the digital economy will be
   furthered by widespread acceptance of the World Intellectual Property Organization ("WIPO") Copyright Treaty
   n6 in the international community. n7 This treaty establishes several important international norms for applying
   copyright law in the digital environment. n8 International consensus on these norms should aid the growth of
   the global digital economy. n9 However, the DMCA was largely unnecessary to implement the WIPO Copyright
   Treaty because U.S. law already complied with all but one minor provision of that treaty. n10
 
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   n6. See WIPO Copyright Treaty, adopted by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc.
   CRNR/DC/94 (Dec. 23, 1996) [hereinafter WIPO Copyright Treaty]. There were actually two treaties concluded
   at this diplomatic conference. The other was the WIPO Performances and Phonograms Treaty, adopted by the
   Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/95 (Dec. 23, 1996). Because the U.S. protects
   the interests of producers and performers of phonograms largely through copyright law and because the
   phonograms treaty was not materially different in its requirements as regards issues covered in this article, the
   article will, for the sake of simplicity, focus on the WIPO Copyright Treaty provisions.

   n7. See generally Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 Va. J. Int'l L. 369 (1997) (discussing
   the negotiations leading to conclusion of the WIPO Copyright Treaty).

   n8. See infra notes 45-55 and accompanying text for a discussion of these norms.

   n9. See First Annual Report, supra note 3, at 10-11.

   n10. See, e.g., Pamela Samuelson, Big Media Beaten Back, Wired, March 1997, at 64 (explaining that U.S. law
   was in compliance with almost all norms of the treaty). Only the treaty provision calling for protecting the
   integrity of rights management information needed legislative implementation in U.S. law. WIPO Copyright
   Treaty, supra note 7, art. 12; see also infra notes 56-64 and accompanying text.
 
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   Although the WIPO Copyright Treaty requires countries to provide "adequate protection" against the
   circumvention of technical measures used by copyright owners to protect their works from infringement, the
   DMCA went far beyond treaty requirements in broadly outlawing acts of circumvention of access controls and
   technologies that have circumvention-enabling uses. n11
 
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   n11. WIPO Copyright Treaty, supra note 6, art. 11. The DMCA anti-circumvention provision can be found at 17
   U.S.C.A. 1201 (West Supp. 1999). See infra notes 66-70 and accompanying text for a discussion of why the
   treaty did not require the DMCA provisions.
 
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    [*522]  The anti-circumvention rules in the DMCA do not match up well with the needs of the digital
   economy, or with the principles propounded in the Framework. n12 Although the First Annual Report praises
   the DMCA for the balance it embodies between copyright protection and access to information, n13 this article
   will demonstrate that such balance as the DMCA contains is attributable to congressional foresight, not to the
   Clinton Administration. n14 Indeed, for the past five years, the Administration has supported highly unbalanced
   digital copyright initiatives and has resisted most efforts to introduce more balance in these initiatives. n15
   With the enactment of the anti-circumvention provisions of the DMCA, the Administration may have had more
   success in achieving imbalance in digital copyright law than Congress may have realized. n16
 
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   n12. See infra Part III for an articulation of these principles. See infra Parts V-VIII for an analysis of why these
   provisions may be harmful to digital economy interests.

   n13. See First Annual Report, supra note 3, at 14.

   n14. See infra Part V.

   n15. See U.S. Dep't of Commerce Info. Infrastructure Task Force, Intellectual Property and the National
   Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995) [hereinafter
   White Paper]. Numerous articles have criticized this and an earlier draft report because of its imbalance heavily
   tilted in favor of publisher interests. See, e.g., Peter A. Jaszi, Caught in the Net of Copyright, 75 Or. L. Rev.
   299 (1996); Leslie Kurtz, Copyright and the National Information Infrastructure, 18 Eur. Intell. Prop. Rev. 120
   (1996); Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L. 29 (1994); Charles R. McManis,
   Taking TRIPS on the Information Superhighway: International Intellectual Property Protection and Emerging
   Computer Technology, 41 Vill. L. Rev. 207 (1996); Pamela Samuelson, The Copyright Grab, Wired, Jan. 1996,
   at 134.

   n16. See infra Parts V-VII.
 
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   It would oversimplify the facts - although not by much - to say that the battle in Congress over the
   anti-circumvention provisions of the DMCA was a battle between Hollywood and Silicon Valley. n17 Hollywood
   and its allies sought the strongest possible ban both on the act of circum  [*523]  venting a technical
   protection system used by copyright owners to protect their works and on technologies having
   circumvention-enabling uses. n18 Silicon Valley firms and their allies opposed this broad legislation because of
   deleterious effects it would have on their ability to engage in lawful reverse engineering, computer security
   testing, and encryption research. n19 They supported legislation to outlaw acts of circumvention engaged in
   for the purpose of infringing copyrights and would have supported narrowly drawn device legislation had the
   Congressional subcommittees principally responsible for formulating WIPO treaty implementation legislation
   been receptive to a narrower bill. n20 Silicon Valley and its allies warned of dire consequences if the overbroad
   anti-circumvention provisions Hollywood supported were adopted. n21 Yet, by colorful use of high rhetoric and
   forceful lobbying, Hollywood and its allies were successful in persuading Congress to adopt the broad
   anti-circumvention legislation they favored, even if it is now subject to some specific exceptions that respond
   to some concerns raised by Silicon Valley firms and their allies in the legislative process. n22
 
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   n17. See, e.g., WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act:
   Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the House
   Comm. on the Judiciary 105th Cong. 78-82 (1997) [hereinafter Judiciary Hearing] (statement of Jack Valenti,
   President and CEO, Motion Picture Ass'n of America); id. at 256-65 (statement of Edward J. Black, President,
   Computer and Communications Industry Ass'n ). It should be noted that the Business Software Alliance, whose
   principal member is Microsoft, supported Hollywood's preferred bill for reasons which may become apparent
   later in this article. See infra notes 180-186 and accompanying text. See also Judiciary Hearing, supra, at
   68-77 (statement of Robert W. Holleyman II, President, Business Software Alliance).

   n18. See, e.g., Judiciary Hearing, supra note 17, at 78-82 (statement of Jack Valenti); id. at 204-12
   (statement of Allan R. Adler, Vice President for legal and governmental affairs, Ass'n of American Publishers).

   n19. See infra notes 87-94 and accompanying text. Other groups opposed to the broad anti-circumvention
   legislation of H.R. 2281 included librarians and educators. See infra notes 117-120 and accompanying text.

   n20. The Digital Future Coalition - whose members include the Computer & Communications Industry
   Association, among other high tech industry groups - endorsed H.R. 3048, 105th Cong. (1997), which
   proposed such a narrow circumvention provision. See Introduction of the Digital Era Copyright Enhancement
   Act, 55 BNA Pat., Trademark & Copyright J. 68, 70-71 (1997) (describing the anti-circumvention provision of
   H.R. 3048). See also Judiciary Hearing, supra note 17, at 256-65 (statement of Edward J. Black) (critical of
   the Administration's anti-circumvention proposal); id. at 249-56 (statement of Chris Byrne, Director of
   Intellectual Property, Silicon Graphics, Inc., on behalf of the Info. Tech. Indus. Council) (critical of H.R. 2281).
 

   n21. See, e.g., Judiciary Hearing, supra note 17, at 260 (prepared statement of Edward J. Black); see also id.
   at 154-55 (prepared statement of Prof. Robert L. Oakley, Georgetown University Law Center).

   n22. See infra Part V.
 
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   Had the Administration sought to broker a fairer compromise between the interests of Hollywood and its allies
   and the interests of Silicon Valley and its allies, this process would almost certainly have produced better
   legislation than the anti-circumvention provisions of the DMCA. One would have thought, given the
   Framework's principles and the Administration's enthusiasm for the strong economic performance of the infor
    [*524]  mation technology sector, that the Administration would have taken a more balanced position on
   these issues. n23 One can call the DMCA's anti-circumvention provisions many things, but one cannot honestly
   speak of them as "predictable, minimalist, consistent, and simple" components of a legal environment for
   electronic commerce, as the Framework principles would suggest they should be. n24
 
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   n23. See infra Part III.

   n24. See Framework, supra note 1, at 3. For further criticism of the DMCA's anti-circumvention provisions on
   constitutional grounds, see Yochai Benkler, Free As the Air To Common Use: First Amendment Constraints on
   the Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999).
 
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   This article will make three main points about the anti-circumvention rules in the DMCA. First, there are far
   more legitimate reasons to circumvent a technical protection system than the DMCA's act-of-circumvention
   provision expressly recognizes. n25 This provision should be amended to provide a general purpose "or other
   legitimate purposes" provision to avert judicial contortions in interpreting the statute. Second, the anti-device
   provisions of the DMCA are highly ambiguous and overbroad, raising questions about whether Congress
   understood the potential for these provisions to undermine circumvention privileges built into the
   act-of-circumvention prohibition. n26 The anti-device provisions of DMCA should be clarified and a more
   minimalist approach taken to the regulation of technologies with circumvention-enabling uses so that the
   ambiguity and overbreadth of the existing provisions will not cause harm to innovation and competition in the
   information technology sector. Third, periodic reviews of the impact of the anti-circumvention provisions of the
   DMCA as a whole should be undertaken. n27 Given how broad the anti-circumvention rules are, given their
   unprecedented character, and given the potential for harmful consequences from these rules, Congress should
   authorize a far broader study of the impact of these provisions than the DMCA presently contemplates. It
   should also heed proposals for change to the anti-circumvention provisions recommended in such studies.
 
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   n25. See infra Part VI.

   n26. See infra Part VII.

   n27. See infra Part VIII.
 
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    [*525]  II. THE DIGITAL ECONOMY IS A HIGH GROWTH, HIGH POTENTIAL SECTOR WHOSE NEEDS DESERVE
   CAREFUL CONSIDERATION
 
   An April 1998 report, The Emerging Digital Economy, published by the U.S. Department of Commerce begins
   with the following observations:
 

 
   During the past few years, the United States economy has performed beyond most expectations. A shrinking
   budget deficit, low interest rates, a stable macroeconomic environment, expanding international trade with
   fewer barriers, and effective private sector management are all credited with playing a role in this healthy
   economic performance.

   Many observers believe advances in information technology ("IT"), driven by the growth of the Internet, have
   also contributed to creating this healthier-than-expected economy.

   In recent testimony to Congress, Federal Reserve Board Chairman Alan Greenspan noted, "our nation has been
   experiencing a higher growth rate of productivity - output per hour - worked in recent years. The dramatic
   improvements in computing power and communication and information technology appear to have been a major
   force behind this beneficial trend." n28
 
   This report indicates that the IT sector of the U.S. economy - which includes the computer hardware,
   software, networking and telecommunications industries - now constitutes an estimated 8.2 per cent of the
   gross domestic product, close to twice its share of GDP as compared with a decade or so before. n29 The IT
   sector, moreover, accounts for more than one-quarter of the real economic growth in the American economy.
   n30 Approximately 45 per cent of current expenditures on business equipment are investments in IT products
   and services. n31 It is no wonder, then, that the collective capitalization of five major firms in this sector -
   Microsoft, Intel, Compaq, Dell, and Cisco Systems - has grown from $ 12 billion in 1987 to $ 588 billion in 1997,
   nearly a fifty-fold increase in only a dec  [*526]  ade. n32 Perhaps somewhat more wondrous are the
   astonishing market capitalizations of relatively new Internet firms, such as Amazon.com, Yahoo!, and E*Trade.
   These valuations reflect the market's belief in the high growth potential of these players in the digital
   economy, even if their earnings so far might seem to belie this. n33 It is, of course, important to realize that
   the IT sector is not the only component of the digital economy. n34 It is, however, a significant part of that
   economy, and it is also the enabler of growth in other parts of the digital economy, as vendors of products
   and services of both tangible and intangible kinds make use of digital networks to offer their wares to a global
   market. n35 Especially as electronic commerce via the Internet and the World Wide Web expands, the IT
   sector is likely to experience further explosive growth. n36
 
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   n28. U.S. Dep't Of Commerce, Secretariat on Elec. Commerce, The Emerging Digital Economy 1 (1998)
   [hereinafter Emerging Digital Economy].

   n29. See id. at 4.

   n30. See id. at 6.

   n31. See id.

   n32. See id. Of course, it is fair to observe that some of this growth has occurred by virtue of acquisitions of
   other substantial firms, such as Compaq's acquisition of Digital Equipment Corp.

   n33. See, e.g., James J. Cramer, TulipMania.com? Despite their soaring prices, the best Internet stocks are
   still bargains. Here's how to pick 'em, Time, Aug. 3, 1998, at 77; see generally Steve Mott, Where Eagles Soar:
   Making Sense of Internet Valuations, Business 2.0, Nov. 1998.

   n34. See Emerging Digital Economy, supra note 28, chs. 4-5 (discussing digital economy sectors).

   n35. See id.

   n36. See id.
 
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   The Emerging Digital Economy report continues along the path set by the Administration's early policy
   document, The Framework for Global Electronic Commerce, in seeking to foster the growth potential of the
   digital economy. n37 Both documents recognize that "governments can have a profound effect on the growth
   of commerce on the Internet. By their actions, they can facilitate electronic trade or inhibit it. Knowing when
   to act and - at least as important - when not to act, will be crucial to the development of electronic
   commerce." n38 One of the signal achievements of the Framework was the promulgation of five principles that
   were supposed to guide U.S. as well as other governmental action on policy initiatives on electronic
   commerce:
 
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   n37. See id. at 50-51.

   n38. Framework, supra note 1, at 2; Emerging Digital Economy, supra note 28, at 50-51.
 
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   1) The private sector should lead.

   2) Governments should avoid undue restrictions on electronic commerce.

    [*527]  3) Where government involvement is needed, its aim should be to support and enforce a predictable,
   minimalist, consistent, and simple legal environment for commerce.

   4) Governments should recognize the unique qualities of the Internet.

   5) Electronic commerce over the Internet should be facilitated on a global basis. n39
 
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   n39. Framework, supra note 1, at 2-3.
 
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   The First Annual Report of the U.S. Working Group on Electronic Commerce offers evidence that the
   Framework's policy objectives are being achieved. n40
 
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   n40. See id. at iii-v.
 
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   As laudable as the Framework's principles are, it should be said that the Clinton Administration has been
   somewhat erratic in following them. The Administration has a good record in promoting minimalist tax and
   customs policies. n41 However, it has been widely criticized by the IT/digital economy sector for not following
   these principles in the security/encryption policy area and in the content policy area, owing to the
   Administration's support for the Clipper Chip and the Communications Decency Act. n42 In the legislative
   struggle leading up to adoption of the DMCA, the Administration deviated from these principles once again in
   heeding the desires of established copyright industries to reconstruct the legal infrastructure of the digital
   environment so that it would accommodate their preferences. These industries insisted that this restructuring
   was necessary to protect them from the grave threat of piracy posed in the digital environment. n43 Many
   significant players in the existing digital economy counseled against this restructuring. n44 The Administration
   should, of course, have considered the interests and concerns of Hollywood and other copyright industry
   groups in its consideration of an appropriate digital copyright policy initiative. However, the Administration
   might have done more to consider the interests of those already partici  [*528]  pating in the digital economy
   in its policy formation on these issues, particularly since its preferred policy so clearly violated the principles
   that the Administration had asserted it would follow.
 
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   n41. See id. at iii, 7 (mentioning passage of the Internet Tax Freedom Act); see also id. at 12 (discussing
   foreign tax initiatives).

   n42. See, e.g., Esther Dyson, Release 2.0 (1997).

   n43. See Judiciary Hearing, supra note 17, at 79-80 (prepared statement of Jack Valenti).

   n44. See id. (testimony of Edward J. Black; testimony of Chris Byrne); see also The WIPO Copyright Treaties
   Implementation Act: Hearing on H.R. 2281 Before the Subcomm. on Telecomm., Trade, & Consumer Protection
   of the House Comm. on Commerce, 105th Cong. (1998) [hereinafter Commerce Hearing].
 
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   III. THE WIPO COPYRIGHT TREATY IS GOOD FOR THE NEW ECONOMY
 
   The WIPO Copyright Treaty established several norms about applying copyright law in the digital environment.
   n45 They include:
 
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   n45. See WIPO Copyright Treaty, supra note 7. See also Samuelson, supra note 7 (discussing the digital
   agenda WIPO treaty provisions).
 
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   1) copyright owners should have an exclusive right to control the making of copies of their works in digital
   form, n46
 
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   n46. There was an explicit provision on the reproduction right in the draft treaty initially considered at WIPO.
   See Basic Proposal For the Substantive Provisions of the Treaty On Certain Questions Concerning the
   Protection of Literary and Artistic Works To Be Considered at the Diplomatic Conference, WIPO Doc.
   CRNR/DC/4, art. 7(1) (Aug. 30, 1996). However, this provision did not attract consensus because of its
   inclusion of temporary reproductions, which was highly controversial. See Samuelson, supra note 7, at 382-90.
   Instead, the diplomatic conference agreed on certain statements of interpretation of the treaty which included
   a provision on the reproduction right. See Agreed Statements Concerning the WIPO Copyright Treaty, adopted
   by the Diplomatic Conference on Dec. 20, 1996, WIPO Doc. CRNR/DC/96 at 1 (Dec. 23, 1996) [hereinafter
   Agreed Statements]. For a discussion of the tortured history of the draft treaty provision, the Agreed
   Statements, and what they mean, see Samuelson, supra note 7, at 382-92.
 
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   2) copyright owners should have an exclusive right to control the communication of their works to the public,
   n47
 
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   n47. See WIPO Copyright Treaty, supra note 6, art. 8. While the United States does not have an exclusive
   right of communication in its copyright law, see 17 U.S.C. 106 (1994) (exclusive rights provisions), its public
   performance and distribution rights are substantively equivalent to this right. See id.; Samuelson, supra note
   7, at 392-98 (discussing negotiations concerning digital communications).
 
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   3) countries can continue to apply existing exceptions and limitations, such as fair use, as appropriate in the
   digital environment, and can even create new exceptions and limitations appropriate to the digital
   environment, n48
 
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   n48. See Agreed Statements, supra note 46, at 2. This agreed statement was in striking contrast to the
   proposed treaty language and proposed comments on exceptions and limitations to copyright in the draft
   treaty considered at the WIPO diplomatic conference. See Samuelson, supra note 7, at 398-409 (discussing
   the draft and final provisions on fair use and other exceptions). Although the White Paper had expressed
   doubts about the viability of fair use in the digital environment, the Clinton Administration was ultimately
   persuaded that the WIPO Copyright Treaty should contain a more positive statement about fair use in the
   digital environment. See White Paper, supra note 15, at 82; Samuelson, supra note 7, at 406.
 
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    [*529]  4) merely providing facilities for the communication of works should not be a basis for infringement
   liability, n49
 
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   n49. See Agreed Statements, supra note 46, at 2. This issue had been highly contentious, both in the U.S.
   and at the diplomatic conference, because the Clinton Administration supported holding online service
   providers strictly liable for infringing acts of their users. See White Paper, supra note 15, at 114-24;
   Samuelson, supra note 7, at 385-88 (discussing controversy at diplomatic conference). The DMCA included a
   provision substantially limiting on online service provider liability. See 17 U.S.C.A. 512 (West Supp. 1999).
 
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   5) it should be illegal to tamper with copyright management information insofar as this would facilitate or
   conceal infringement in the digital environment, n50 and
 
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   n50. See WIPO Copyright Treaty, supra note 7, art. 12. For a discussion of the history and meaning of this
   provision, see Samuelson, supra note 7, at 415-18.
 
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   6) countries should have "adequate legal protection and effective legal remedies against the circumvention of
   effective technological measures" used by copyright owners to protect their works from infringing uses. n51
 
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   n51. See WIPO Copyright Treaty, supra note 7, art. 11. The draft treaty considered at WIPO included a
   provision quite similar to the anti-circumvention provision endorsed by the Clinton Administration in the White
   Paper which sought to outlaw technologies, the primary purpose or effect of which was to circumvent
   technical protection measures. The draft treaty provision, like the White Paper's proposed anti-circumvention
   regulation, was highly controversial within the United States and even more so at the diplomatic conference.
   Many delegations expressed concern about the impact of such regulations on fair uses and public domain
   information. As a consequence, the final treaty included only a very general norm on anti-circumvention. See
   Samuelson, supra note 7, at 409-15.
 
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   To the extent that uncertainties about how copyright law should apply in the digital environment were
   impeding the growth of a global market in electronic intellectual property products, n52 there was reason to be
   optimis  [*530]  tic that conclusion of this treaty would remove these blockages and allow e-commerce to
   flourish. n53 These norms are as "predictable, minimalist, consistent, and simple" components of a legal
   environment for commerce as one could expect copyright professionals to devise. n54 Thus, the WIPO treaty
   itself established norms compatible with Framework principles and with the needs of the digital economy. That
   nearly one hundred sixty nations signed this treaty indicated a strong consensus that digital works should be
   given appropriate protection on an international scale. n55 This was very good news for U.S. digital economy
   industries.
 
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   n52. Other factors besides uncertainties about the application of copyright law in the digital environment may
   be responsible for the slower-than-anticipated growth in the market for digital versions of copyrighted works.
   See, e.g., Pamela Samuelson, Authors' Rights in Cyberspace: Are New International Rules Needed?, First
   Monday (Oct. 1996), available at <http://www.firstmonday.dk/issues/issue4/samuelson/index.html>. However,
   there is a better case for such uncertainties being an impediment on an international scale than in the United
   States. That U.S. copyright law protects authors against unauthorized digital reproductions of their works has
   been clear since 1979. See National Comm'n on New Technological Uses of Copyrighted Works, Final Report
   (1979). In some countries, however, this was not as clear. Insofar as the WIPO Copyright Treaty clarified this
   on an international basis, it did contribute to the legal infrastructure for global e-commerce. See Samuelson,
   supra note 7, at 382-85 (discussing lack of clarity about the reproduction right in the digital environment).

   n53. See, e.g., First Annual Report, supra note 3, at 13-14.

   n54. Framework, supra note 1, at 3.

   n55. See List of Participants, WIPO Doc. No. CRNR/DC/INF.2 (Dec. 20, 1996).
 
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   The WIPO treaty digital copyright norms were, however, mostly old news for U.S. law. n56 Its cases had
   already recognized the rights of authors to control digital reproductions of their works, n57 as well as to
   control digital transmissions of their works to the public. n58 Courts had invoked fair use in a number of digital
   copyright cases, n59 and had refused to hold online service providers liable for infringing activities of users
   about which the providers had no knowledge. n60 Because of the substantial accord between the WIPO treaty
   norms and existing U.S. law, the Clinton Administration initially considered whether the WIPO Copyright Treaty
   might even be sent to the Senate for ratification "clean" of implementing legislation. n61 This would have
   avoided the kind of protracted legislative battle that oc  [*531]  curred when Congress considered the
   Administration's White Paper legislation in 1996. n62 Eventually, the Administration decided that implementing
   legislation was necessary for the U.S. to comply with the WIPO treaty provision requiring protection for the
   integrity of copyright management information. n63 The DMCA implementation of this norm, which closely
   tracks the treaty language, was uncontroversial during the legislative process. n64
 
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   n56. The WIPO Copyright Treaty, as finally concluded, was actually far more consistent with U.S. copyright
   law than the draft treaty with which the negotiations had begun (and which was substantially based on
   proposals by U.S. officials). See Samuelson, supra note 7, at 434-37.

   n57. See, e.g., Sega Enterprises, Ltd. v. MAPHIA, 857 F. Supp. 679 (N.D. Cal. 1994).

   n58. See, e.g., Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).

   n59. See, e.g., Lewis Galoob Toys, Inc. v. Nintendo of America, 964 F.2d 965 (9th Cir. 1992) (software
   enabling temporary changes in the play of Nintendo games held fair use).

   n60. See, e.g., Religious Tech. Center v. Netcom Online Comm. Corp., 907 F. Supp. 1361 (N.D. Cal. 1995)
   (online service provider should not be held strictly liable for user infringement of which it had no knowledge).

   n61. See Clinton Administration Is Undecided On Implementing Steps For WIPO Treaties, 53 BNA Pat.,
   Trademark & Copyright J. 241 (1997).

   n62. See Samuelson, supra note 7, at 427-32 (arguing that U.S. efforts at WIPO conference were aimed at
   bypassing contention over domestic legislative proposals).

   n63. See WIPO Copyright Treaty, supra note 7, art. 12. Had this treaty defined the term "rights management
   information" ("RMI") only as "information which identifies the work, the author of the work, the owner of any
   right in the work," the U.S. could have relied on section 43(a) of the Lanham Act to assert that it was in
   compliance with the norms of this Article as well. See Julie E. Cohen, Some Reflections on Copyright
   Management Systems and Laws Designed to Protect Them, 12 Berkeley Tech. L.J. 161, 169 n.31. However,
   the treaty defines RMI as including "information about the terms and conditions of use of the work, or any
   numbers or codes that represent such information<elip>." WIPO Copyright Treaty, supra note 6, art. 12.
   Section 43(a) would not seem to cover misrepresentations of this sort. See 15 U.S.C. 1125(a) (1994); see
   also Cohen, supra, at 169 n.31. In addition, it appears that some technical amendments to U.S. law were
   necessary to change the terminology about which foreign nationals could claim rights under U.S. law. See
   Section-by-Section Analysis of H.R. 2281 As Passed By the United States House of Representatives on August
   4, 1998, 105th Cong., at 3-4 (1998) [hereinafter House Manager's Report].

   n64. See 17 U.S.C.A. 1202 (West Supp. 1999). Concerns had earlier been expressed that copyright
   management systems might be intrusive on privacy interests of users. See, e.g., Julie E. Cohen, The Right to
   Read Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 Conn. L. Rev. 981 (1996). In
   response to concerns of this sort, the legislative history of DMCA makes clear that copyright management
   information ("CMI") does not include digital information used to track or monitor usage of copyrighted works:
   "It would be inconsistent with the purpose and construction of this bill and contrary to the protection of
   privacy to include tracking and usage information within the definition of CMI." House Manager's Report, supra
   note 63, at 20.
 
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   The U.S. could have asserted that its law already complied with the WIPO treaty's anti-circumvention norm.
   n65 This norm was, after all, very  [*532]  general in character and provided treaty signatories with
   considerable latitude in implementation. Moreover, anti-circumvention legislation was new enough to many
   national intellectual property systems, and certainly to international law, to mean that there was no standard
   by which to judge how to instantiate the norm. The U.S. could have pointed to a number of statutes and
   judicial decisions that establish anti-circumvention norms. n66 With U.S. copyright industries thriving in the
   current legal environment, it would have been fair to conclude that copyright owners already were adequately
   protected by the law. n67 Even many of those who favor use of technical systems to protect digital
   copyrighted works have expressed skepticism about the need for or appropriateness of anti-circumvention
   regulations, at least at this stage. n68 Let content producers build their technical fences, advised one
   prominent information economist, but do not legislatively reinforce those fences until experience proves the
   existence of one or more abuses in need of a specific cure. n69 However, the political reality and legislative
   dynamics of the WIPO Copyright Treaty implementation process were such that some sort of
   anti-circumvention provision appeared to be a necessary part of the bill.
 
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   n65. It is far more plausible that the U.S. is in compliance with the WIPO treaty anti-circumvention norm than
   that it is in compliance with the moral rights provision of the Berne Convention, which is one of the minimum
   standard rules required of Berne Union members. See Berne Convention for the Protection of Literary and
   Artistic Works, Sept. 9, 1886, art. 6bis (Paris Text, 1971, amended 1979), reprinted in 1 Basic Documents of
   Int'l Econ. L. (CCH) 715 (1994). See also Jessica Litman, The Tales That Article 2B Tells, 13 Berkeley Tech.
   L.J. 931, 932 (1998) (discussing the U.S. rationale for claiming to be in compliance with the Berne Convention's
   moral rights provision, and expressing skepticism about the adequacy of this rationale). See also Jonathan
   Band & Taro Isshiki, The New Anti-Circumvention Provision in the Copyright Act: A Flawed First Step, 3
   Cyberspace Law. 2 (1999) (explaining that the DMCA's anti-circumvention regulations were not required for
   compliance with the WIPO Copyright Treaty).

   n66. See White Paper, supra note 15, at 232-34 (discussing statutes); Sega Enterprises, Ltd. v. MAPHIA, 857
   F. Supp. 679 (N.D. Cal. 1994) (finding copyright liability for providing tools to enable game software to be
   removed from disks and posted on the Internet).

   n67. See, e.g., Judiciary Hearing, supra note 17, at 78 (statement of Jack Valenti) (citing $ 60 billion in annual
   U.S. revenues from international sales of intellectual property and naming copyright industry as single greatest
   contributor to U.S. economy); Motion Picture Ass'n of America Research Dep't, MPAA 1998 U.S. Economic
   Review (visited Apr. 22, 1999) <http://www.mpaa.org/useconomicreview/1998/index.htm> (demonstrating
   steadily increasing U.S. box office receipts between 1991 and 1998).

   n68. See, e.g., Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on
   Copyright's Fair Use Doctrine, 76 N.C. L. Rev. 557, 561-62 (1998); David Friedman, In Defense of Private
   Orderings, 13 Berkeley Tech. L.J. 1151, 1163-64 n.31 (1998).

   n69. See Ejan Mackaay, The Economics of Emergent Property Rights on the Internet, in The Future Of
   Copyright in a Digital Environment 13, 21 (P. Bernt Hugenholtz ed., 1996). "It is this restraint," says MacKaay,
   "that guards us from sliding into rent-seeking." Id. at 22.
 
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   Even if a reasoned assessment of U.S. law might have led policymakers to conclude that some additional
   anti-circumvention legislation was necessary or desirable, one would have thought that the Administration
   would have supported a "predictable, minimalist, consistent, and simple"  [*533]  legal rule, as its Framework
   principles call for. The Administration might have, for example, proposed to make it illegal to circumvent a
   technical protection system for purposes of engaging in or enabling copyright infringement. This, after all, was
   the danger that was said to give rise to the call for anti-circumvention regulations in the first place. Silicon
   Valley Representative Tom Campbell proposed such an approach in his alternative bill. n70 If this same
   assessment caused policymakers to decide there was also a need for some regulation of circumvention
   technologies to promote electronic commerce, then a "predictable, minimalist, consistent, and simple" legal rule
   would have been to outlaw making or distributing a technology intentionally designed or produced to enable
   copyright infringement. n71 Many "digital economy" firms and organizations supported the first of these
   proposals, n72 and they would likely have supported the second if it had ever had a chance of being taken
   seriously.
 
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   n70. See H.R. 3048, 105th Cong. 8 (1997). Northern Virginia Representative Rick Boucher (whose district
   includes America Online) cosponsored this bill.

   n71. This was how most previous regulations of circumvention technologies had been framed. See, e.g.,
   Thomas C. Vinje, A Brave New World of Technical Protection Systems, 8 Eur. Intell. Prop. Rev. 431 (1996).

   n72. See supra note 20.
 
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   Clinton Administration officials, bowing to the wishes of Hollywood and its allies, opted instead to support an
   unpredictable, overbroad, and maximalist set of anti-circumvention regulations. During Congressional
   consideration of these provisions, these regulations became complex and inconsistent for reasons that will
   become evident in later sections of this article. n73 It was, in short, not the needs of the digital economy that
   drove adoption of the anti-circumvention provisions in the DMCA. Rather, what drove the debate was high
   rhetoric, exaggerated claims, and power politics from representatives of certain established but frightened
   copyright indu  [*534]  stries. These groups seem to believe they are so important to America that they
   should be allowed to control every facet of what Americans do with digital information. n74 They also seem to
   think they are entitled to control the design and manufacture of all information technologies that can process
   digital information. n75 The DMCA caters to their interests far more than to the interests of the innovative
   information technology sector or of the public.
 
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   n73. The anti-circumvention regulations are one of a number of amendments to the Copyright Act of 1976 that
   are contributing to its becoming increasingly unreadable. See, e.g., 17 U.S.C. 104A (1994) (restoration of
   copyright in foreign works that had fallen into the public domain for lack of compliance with U.S. formality rules
   in effect until 1989). This is not to say that the 1976 Act was a model of comprehensibility in all respects.
   See, e.g., 17 U.S.C. 111-112 (1994) (effective Jan. 1, 1978) (exceptions permitting passive retransmission of
   broadcast signals by cable systems and ephemeral recordings during broadcast transmission). However, these
   incomprehensible provisions had at least been negotiated by affected industry sectors who understood what
   the provisions meant, even if virtually no one else could comprehend them. In contrast, the restoration of
   foreign copyright and the new anti-circumvention regulations affect a broad range of industries. This makes
   the incomprehensibility of the provisions more troublesome.

   n74. See Samuelson, supra note 15 (discussing the copyright maximalist agenda the Clinton Administration has
   supported).

   n75. The potential for broad anti-circumvention regulations to give copyright owners power to control the
   design of consumer electronics products was recognized in Geneva. See John Browning, Africa 1, Hollywood 0,
   Wired, March 1997, at 61, 186 ("Japan and other Asian nations were up in arms about proposals that would
   effectively have turned the consumer electronics industry into a branch of publishing."). Indeed, some
   unnoticed provisions of the DMCA will require the makers of consumer videotape recorders to build in
   anti-copying technology in subsequent models. See 17 U.S.C.A. 1201(k).
 
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   IV. DMCA'S OVERBROAD ANTI-CIRCUMVENTION PROVISIONS ARE NEITHER CONSISTENT WITH FRAMEWORK
   PRINCIPLES NOR GOOD FOR THE NEW ECONOMY
 
   There are three principal rules in the final DMCA's anti-circumvention provision. The first focuses on the act of
   circumvention. Section 1201(a)(1)(A) generally outlaws the act of circumventing "a technological measure
   that effectively controls access to a work protected under this title." n76 This rule will, however, not take
   effect for two years from enactment, in part to allow time for a study to be conducted of the potential impact
   of this norm on noninfringing uses of copyrighted works. n77 When it does come into force, it will be subject to
   seven complex exceptions that will be discussed below in Part V.A. n78
 
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   n76. 17 U.S.C.A. 1201(a)(1)(A).

   n77. See id.; infra notes 208-210 and accompanying text.

   n78. See id. 1201(d)-(j), discussed infra notes 98-135 and accompanying text.
 
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   Section 1201 also contains two "anti-device" provisions. Sections 1201(a)(2) and 1201(b)(1) both regulate
   technologies with circumvention-enabling capabilities. The former focuses on devices that circumvent "a
   technological measure that effectively controls access to a [copyrighted] work" (access controls). n79 The
   latter relates to devices that circumvent the "protection afforded by a technological measure that effectively
   protects a  [*535]  right of a copyright owner <elip> in a work or a portion thereof" (e.g., copy controls). n80
   In each case, section 1201 states that "no person shall manufacture, import, offer to the public, provide, or
   otherwise traffic in any technology, product, service, device, component, or part thereof" n81 if it (1) "is
   primarily designed or produced for the purpose of circumventing," n82 (2) "has only limited commercially
   significant purpose or use other than to circumvent," n83 or (3) "is marketed by that person or another acting
   in concert with that person with that person's knowledge for use in circumventing" n84 the technological
   measure or the protection it affords. The anti-device rules have a narrower range of exceptions than does the
   act-of-circumvention ban. n85
 
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   n79. Id. 1201(a)(2); see also id. 1201(a)(3) (defining the phrases "circumvent a technological measure" and
   "effectively controls access to a work").

   n80. Id. 1201 (b)(1); see also id. 1201(b)(2) (defining the terms "circumvent protection afforded by a
   technological measure" and "effectively protects a right of a copyright owner under this title").

   n81. Id. 1201(a)(2), (b)(1).

   n82. Id. 1201(a)(2)(A), (b)(1)(A). There is no definition of "primarily designed or produced" in the statute; nor
   are any criteria for determining it provided in the statute.

   n83. Id. 1201(a)(2)(B), (b)(1)(B). This subsection may be the broadest and most dangerous of the three
   conditions because it would seem to put at risk "freeware" or "shareware" programs that, by their very nature,
   have no commercial uses. MIT Professor Hal Abelson has informed me that he expressed his reservations about
   this subsection to Rep. Barney Frank who serves on the House Intellectual Property Subcommittee. Prof.
   Abelson said that this provision should outlaw technologies having "only limited legitimate uses." He reports
   that Rep. Frank agreed with this assessment. Yet the final provision retains the "limited commercial purposes"
   construction with which it began. Email correspondence with Hal Abelson (Feb. 28, 1999) (on file with author).
 

   n84. 17 U.S.C.A. 1201(a)(2)(C), (b)(1)(C).

   n85. See id. 1201(g)(4), (j)(4).
 
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   One would have to admit that the act-of-circumvention rule initially sought by the Administration was simpler,
   and at least in this respect, more consistent with the Framework's principles than the DMCA as enacted. The
   original proposal would have outlawed circumventions of technical protection systems except when done for
   legitimate law enforcement or intelligence purposes. n86 However, representatives of major information
   technology firms and organizations brought to Congress's attention that this norm would interfere with many
   legitimate activities. n87 It would, for example, have outlawed encryption research and computer security
   testing, even though these activities are critical to achieving many of the ob  [*536]  jectives of the digital
   economy. n88 As Congress came to recognize that there were a number of legitimate reasons to circumvent
   technical protection systems, the bill slowly accreted exceptions that made the bill more complicated but less
   harmful to growth of the digital economy. n89
 
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   n86. See H.R. 2281 1201, 105th Cong. (1997) (as introduced in the House of Representatives on July 29,
   1997), reprinted in 54 BNA Pat., Trademark & Copyright J. 270 (1997).

   n87. See, e.g., Judiciary Hearing, supra note 17, at 256-61 (statement of Edward J. Black).

   n88. See Letter from Dr. Charles Brownstein, Chair of the Public Policy Committee of the U.S. Chapter of the
   Association for Computing Machinery, to Rep. Thomas J. Bliley, Chairman of the House Commerce Committee
   (Sept. 29, 1998) (on file with author) (expressing concern about impact of broad anti-circumvention
   regulations on computer security research). See also Framework, supra note 1 , 6 (emphasizing the importance
   of computer security to the growth of global economic commerce).

   n89. See infra Part V.
 
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   These same firms and organizations, in alliance with major consumer electronics firms, were also critical of the
   Administration's preferred anti-device provisions. n90 However, these digital economy groups exhausted their
   political capital on getting critical exceptions to the act-of-circumvention ban n91 and on establishing that
   they had no affirmative duty to build their technologies to respond to technical protection systems, but only a
   duty to refrain from actively undermining them. n92 They took some comfort in statements by Congressional
   supporters of a limited interpretation of  [*537]  the anti-device norms indicating that Congress meant for the
   anti-device provisions to apply to ""black boxes' that are expressly intended to facilitate circumvention." n93
   Still, the digital economy sector remains understandably concerned about the potential for overbroad
   application of the anti-circumvention and anti-device norms, and recent developments suggest that there is
   reason for this concern. n94
 
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   n90. See Commerce Hearing, supra note 44, at 32-33 (prepared statement of Chris Byrne, Director of
   Intellectual Property, Silicon Graphics, Inc., on behalf of Info. Tech. Indus. Council); id. at 28-30 (statement
   of Jonathan Callas, Chief Technology Officer, Network Assocs., Inc.); id. at 58-63 (statement of Seth
   Greenstein, Esq., on behalf of the Digital Media Ass'n); id. at 46-49 (statement of Walter H. Hinton, Vice
   President, Storage Tech. Corp., on behalf of the Computer and Communications Indus. Ass'n); id. at 18-27
   (statement of Gary J. Shapiro, Chairman, Home Recording Rights Coalition, and President, Consumer Elecs.
   Mfrs. Ass'n).

   n91. See 17 U.S.C.A. 1201(f), (g), and (j).

   n92. See id. 1201(c)(3); 144 Cong. Rec. H7093, H7095 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley).

   n93. See id. at H7094-95 ("This provision is not aimed at products that are capable of commercially significant
   noninfringing uses<elip>."). See also id. at H7097 ("It is not enough for the primary effect of the device to be
   circumvention. It, therefore, excludes legitimate multipurpose devices<elip>."); House Manager's Report, supra
   note 63, at 9 ("[Section 1201(a)(2)] is carefully drafted to target "black boxes' and to ensure that legitimate
   multipurpose devices can continue to be made and sold."); infra note 192 and accompanying text.

   n94. See infra notes 193-195and accompanying text.
 
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   Although Administration officials admitted in Congressional testimony that its preferred legislation went beyond
   what the WIPO Copyright Treaty required, it argued for this broader rule in part to set a standard that would
   help the U.S. persuade other countries to pass similarly strong rules. n95 Proponents of the Administration's
   preferred anti-circumvention regulations scoffed at arguments made by an alliance of consumer electronics
   firms and by representatives of the computer and software industries about the harm that broad
   anti-circumvention regulations would do in this industry. n96 They also dismissed as specious arguments made
   by library and educational groups about threats to fair use and the public domain arising from broad
   anti-circumvention regulations. n97
 
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   n95. See, e.g., House Subcommittee Holds Hearings on WIPO Treaty Bills, OSP Liability, 54 BNA Pat.,
   Trademark & Copyright J. 414 (1997).

   n96. See, e.g., Judiciary Hearing, supra note 17, at 204-12 (statement of Allan Adler).

   n97. See, e.g., id. at 229, 235-36 (testimony of Michael K. Kirk, executive director, American Intellectual
   Property Law Ass'n).
 
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   V. THE ENUMERATED EXCEPTIONS IN THE ACT-OF-CIRCUMVENTION BAN ARE UNDULY NARROW AND
   INCONSISTENT WITH FRAMEWORK PRINCIPLES

   A. The Statutory Exceptions to the Circumvention Ban
 
   The DMCA ban on the act of circumventing technical protection systems is subject to seven very specific
   exceptions, n98 as well as being qualified by several other subsections. n99 In addition, it is subject to a
   two-year moratorium during which the Librarian of Congress is supposed to study the potential impact of the
   anti-circumvention ban on noninfringing uses of copyrighted works which may lead to further limitations on the
   act-of-circumvention rule. n100 While several of these exceptions and limitations respond to the gravest of
   concerns expressed by digital economy firms, n101  [*538]  they are still too narrowly crafted, as examples
   given below will reveal. n102 Congress should have adopted a provision enabling courts to exempt acts of
   circumvention engaged in for other legitimate purposes. Courts interpreting section 1201 may either be forced
   to find liability in some situations in which it would be inappropriate to impose it or to stretch existing
   limitations. Congress may eventually need to revise this provision to recognize a broader range of exceptions.
 
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   n98. See 17 U.S.C.A. 1201(d)-(i) (West Supp. 1999).

   n99. See id. 1201(c)(1)-(4).

   n100. See id. 1201(a)(1)(A)-(C).

   n101. See id. 1201(f) (reverse engineering exception), 1201(g) (encryption research), and 1201(j) (computer
   security testing). See also Judiciary Hearing, supra note 17, at 260-61 (prepared statement of Edward J.
   Black) (expressing concern about reverse engineering); Commerce Hearing, supra note 44, at 29-30 (prepared
   statement of Jonathan Callas) (expressing concern about encryption and security research).

   n102. See infra Part V.B.
 
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   The structure of the final DMCA anti-circumvention provision and its complexity resulted from the maximalist
   position with which the Administration and its major copyright industry allies began the legislative struggle.
   Only when IT industry groups were able to identify particularized situations in which circumvention was
   appropriate was there any legislative "give" on the issue, and then only to the extent of that identified
   situation. n103 As noted above, Clinton Administration officials initially sought an almost unlimited ban of
   circumvention activities. n104 The only exception to the circumvention ban in the Administration's favored
   legislation was an authorization of circumvention of technical protection systems for legitimate law
   enforcement, intelligence, and other governmental purposes. n105 Without this exception, suspected Mafia
   bosses and terrorists, oddly enough, might have been able to challenge attempted law enforcement or
   intelligence agency decryptions of their records or communications under section 1201(a)(1). n106
 
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   n103. See supra note 101.

   n104. See Band & Isshiki, supra note 65 (indicating that Patent and Trademark Office (PTO) officials had
   initially sought to outlaw circumvention of copy controls, as well as of access controls, and that lobbying by
   library and educational groups had persuaded Commerce Department officials to drop this provision of the
   PTO's preferred bill).

   n105. See H.R. 2281 1201(e), 105th Cong. (1997) (as introduced in the House of Representatives on July 29,
   1997). The DMCA version of 1201 has such a provision, although it has been expanded to enable government
   agencies to test the vulnerabilities of their computer systems or networks. See 17 U.S.C.A. 1201(e) (West
   Supp. 1999).

   n106. Virtually all such records would likely embody a modicum of originality that would enable these actors to
   claim copyright protection in fixations of these records. If these persons used technical protection systems to
   prevent unauthorized access to these records, any act of the government to circumvent such systems would,
   strictly speaking, run afoul of 1201(a)(1).
 
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   The Administration's preferred bill also provided that nothing in section 1201 would "affect rights, remedies,
   limitations, or defenses to copy  [*539]  right infringement, including fair use, under this title." n107 This
   seemed to recognize that circumventing a technical protection system for purposes of engaging in fair use or
   other noninfringing acts would be lawful, although it did not directly say so. n108 Some representatives of
   major copyright industries who testified at a Congressional hearing on this legislation expressed the view that
   fair use should not be an acceptable reason to "break" a technical protection system used by copyright
   owners to protect their works. n109 Allan Adler, testifying on behalf of the Association of American Publishers,
   for example, stated that "the fair use doctrine has never given anyone a right to break other laws for the
   stated purpose of exercising the fair use privilege. Fair use doesn't allow you to break into a locked library in
   order to make "fair use' copies of the books in it, or steal newspapers from a vending machine in order to copy
   articles and share them with a friend." n110 The "breaking and entering" metaphor for circumvention activities
   swayed some influential Congressmen in the debate over anti-circumvention regulations. n111
 
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   n107. H.R. 2281 1201(d) (as introduced in the House of Representatives on July 29, 1997). See 17 U.S.C.A.
   1201(c)(1).

   n108. An extremely narrow interpretation of the provision might suggest that fair use could be raised as a
   defense to an infringement claim based on activities engaged in after a circumvention had taken place (e.g.,
   reproducing a portion of the work for fair use purposes), even if the act of circumvention itself would not be
   excused. See Judiciary Hearing, supra note 17, at 235-36 (testimony of Michael K. Kirk).

   n109. See also White Paper, supra note 15, at 231 (indicating that copyright owners have no obligation to
   make their works available in a form that will enable fair uses to be made of them).

   n110. Judiciary Hearing, supra note 17, at 208 (prepared statement of Allan Adler). This same speaker went on
   to say that "the Declaration of Independence is in the public domain, but there is nothing wrong with the
   National Archives keeping it in a vault and punishing anyone who tries to break through security to get hold of
   that copy." Id.

   n111. See House Manager's Report, supra note 63, at 5 (characterizing circumvention to get unauthorized
   access as "the electronic equivalent to breaking into a locked room to obtain a copy of a book"). But see,
   e.g., Friedman, supra note 68, at 1163 n.31 (arguing against the treatment of technologies capable of
   circumventing technical protection systems as "the digital equivalent of burglar's tools").
 
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   Courts should distinguish between circumvention aimed at getting unauthorized access to a work and
   circumvention aimed at making noninfringing uses of a lawfully obtained copy. n112 Section 1201(a)(1) is
   aimed at the former, not the latter. Fair use, for example, would provide a poor  [*540]  excuse for breaking
   into a computer system in order to get access to a work one wished to parody. However, if one had already
   lawfully acquired a copy of the work, and it was necessary to bypass a technical protection system to make
   fair use of that copy, this would appear to be lawful under section 1201(a)(1) and (c)(1). n113 Take, for
   example, an act of circumvention performed by Geoffery Nunberg, a friend of mine who works for Xerox's Palo
   Alto Research Center. He was an expert witness in a lawsuit which successfully challenged the Washington
   Redskins' trademark on the ground that the word "redskins" is scandalous or disparaging. n114 Nunberg decided
   it was necessary to take a clip from an old Western movie to demonstrate derogatory uses of the term in
   context. It was necessary for him to defeat a technical protection system adopted by the owner of the
   copyright in this movie in order to make the clip for this purpose. If section 1201(c)(1)'s preservation of fair
   use and other defenses to infringement are to be given their plain meaning, it would seem that this sort of
   circumvention should be permissible. n115 Thus, if the clip from the movie qualifies as a fair use, the act of
   circumvention may be privileged under section 1201(c)(1). n116
 
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   n112. See Cohen, supra note 63, at 174-76 (discussing lawful circumvention); see also Julie E. Cohen,
   Copyright and The Jurisprudence of Self-Help, 13 Berkeley Tech. L.J. 1089, 1142 n.200 (1998) (finding in
   copyright's fair use doctrine an affirmative right to "hack" technical protection systems to make fair uses).

   n113. See 144 Cong. Rec. H7097 (daily ed. Aug. 4, 1998) (letter from Rep. Howard Coble to Rep. Rick Boucher)
   (indicating an intent to distinguish between circumvention to get unauthorized access to a work and
   circumvention to make fair uses).

   n114. See Harjo v. Pro-Football, Inc., 45 U.S.P.Q.2d (BNA) 1789 (1998); 15 U.S.C. 1052(a) (1994) (excluding
   scandalous and disparaging matter from trademark protection); See also "Redskins" Mark is Cancelled as
   Disparaging to Native Americans, BNA Pat., Trademark & Copyright Law Daily (Apr. 12, 1999).

   n115. See, e.g., 144 Cong. Rec. H7093 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley) (indicating that the
   Commerce Committee understood the legislation to enable consumers to "exercise their historical fair use
   rights"); see also id. at H7097 (letter from Rep. Coble to Rep. Boucher).

   n116. But see infra notes 157-162 and accompanying text for a discussion about whether this person's
   development of a technology enabling him to defeat the technical protection system would be similarly
   privileged.
 
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   Although this section's apparent preservation of fair use was important, it did not satisfy library and nonprofit
   groups who expressed substantial concern about the impact that the anti-circumvention provisions would have
   on public access to information. n117 The only additional concession that the House Subcommittee on
   Intellectual Property thought should be made to concerns expressed by these groups was to create a special
   "shopping privilege" for them. This exception, which was included in the final DMCA, enables nonprofit library
   and educational institutions to circum  [*541]  vent technical protection systems to "make a good faith
   determination of whether to acquire a copy" of the work. n118 Librarians and educators do not see much value
   in this provision because vendors of technically protected copyrighted works will generally have incentives to
   allow librarians and educators to have sufficient access to make acquisition decisions. n119 Their broader
   concerns about the impact of anti-circumvention regulations on noninfringing uses fell on deaf ears in both the
   House and Senate Subcommittees on Intellectual Property. n120
 
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   n117. See, e.g., Commerce Hearing, supra note 44, at 64-66 (statement of Prof. Robert L. Oakley).

   n118. See 17 U.S.C.A. 1201(d) (West Supp. 1999).

   n119. See infra notes 151-156 and accompanying text, concerning whether the shopping privilege could be
   undermined by the lack of available tools to enable this circumvention.

   n120. See, e.g., Judiciary Hearing, supra note 17, at 148-56 (statement of Robert L. Oakley); id. at 64-68
   (statement of M.R.C. Greenwood, chancellor of the University of California, Santa Cruz) (expressing concerns
   about the impact of technical protection systems on noninfringing uses of protected works - concerns the
   "shopping privilege" does not address).
 
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   Computer and software industry groups were initially unsuccessful in persuading Congress to create additional
   exceptions to the anti-circumvention rules and other changes to the anti-circumvention regulations to make
   them less harmful to legitimate activities in these industries. n121 Not until the full Senate Judiciary Committee
   and the House Commerce Committee undertook their reviews of the legislation were concerns of these industry
   groups heeded. Out of the Senate Committee emerged three significant changes to the DMCA. The first was
   creation of a new exception to enable circumvention of technical protection systems for purposes of enabling
   a software developer to achieve interoperability among computer programs. n122 The second was a provision
   clarifying that equipment manufacturers were under no obligation to specially design their products to respond
   to any particular technical measure used by those providing content for this equipment. n123 The third was a
   provision indicating that section 1201 was not intended to broaden contributory or vicarious copyright liability.
   n124
 
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   n121. See, e.g., id. at 256-65 (statement of Edward J. Black) (expressing concern about the impact of the
   anti-circumvention provisions for achieving interoperability among computer programs).

   n122. See 17 U.S.C.A. 1201(f) (West Supp. 1999).

   n123. See id. 1201(c)(3).

   n124. See id. 1201(c)(2).
 
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   An interesting twist in the saga leading up to adoption of the DMCA was the House Commerce Committee's
   decision to exercise jurisdiction  [*542]  over part of the digital copyright legislation. n125 Its review led to
   several other significant changes to the bill. Some of these responded to concerns expressed by digital
   economy firms; others responded to concerns expressed by library, educational, and other nonprofit groups.
   n126 The Commerce version of the bill added a new exception to enable encryption research and the
   development of encryption-research tools. n127 It also created two consumer-oriented exceptions, one to
   enable parents to circumvent access controls when necessary to protect their children from accessing harmful
   material on the Internet, and the other to enable circumvention to protect personal privacy. n128 It also
   proposed a moratorium on the anti-circumvention rules so that a study could be conducted about the
   potential impact of anti-circumvention rules on fair use, the public domain, and other noninfringing uses of
   copyrighted works. n129
 
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   n125. See Commerce Hearing, supra note 44, at 1-3 (statement of Rep. Tauzin, Subcomm. Chairman)
   (explaining the Commerce Committee's reasons for reviewing the WIPO treaty implementation legislation).

   n126. See Commerce Panel Clears Digital Copyright Bill With Further Concessions on Fair Use, 56 BNA Pat.,
   Trademark & Copyright J. 326 (1998).

   n127. This eventually was codified in the DMCA. See 17 U.S.C.A. 1201(g) (West Supp. 1999).

   n128. These were also eventually codified in the DMCA. See id. 1201(h), (i).

   n129. See id. 1201(a)(1)(B). See also infra notes 205-206 and accompanying text for discussion of this
   provision.
 
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   More clearly than the Judiciary Committees in either branch of Congress, the Commerce Committee recognized
   the unprecedented nature of the access right that was implicit in the act-of-circumvention provision of
   section 1201. "If left unqualified," said Congressman Bliley, "this new right <elip> could well prove to be the
   legal foundation for a society in which information becomes available only on a "pay-per-use' basis." n130 To
   ensure this would not occur, the legislation was amended to enable librarians and educators to make a
   showing that the anti-circumvention provision was interfering with noninfringing uses of copyrighted materials
   and to seek an exemption from the ban. n131 Insofar as such a showing could be made, the Commerce
   Committee thought that affected classes of works or of users should be exempt from section 1201(a)(1)(A).
   Congressman Bliley pointed out that "copyright law is not just about protecting information. It's just as much
   about affording reasonable access to it as a means of  [*543]  keeping our democracy healthy<elip>." n132
   The Commerce Committee review of the legislation also led to inclusion of a provision indicating that nothing in
   section 1201 "shall enlarge or diminish any rights of free speech or of the press for activities using consumer
   electronics, telecommunications, or computing products." n133 This provision recognizes the potential impact
   of the anti-circumvention rule on free speech and free press interests.
 
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   n130. 144 Cong. Rec. H7094 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley).

   n131. See 17 U.S.C.A. 1201(a)(1)(B)-(D). See infra notes 203-210 and accompanying text.

   n132. 144 Cong. Rec. H7094 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley).

   n133. 17 U.S.C.A. 1201(c)(4).
 
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   During the final negotiations leading up to passage of the DMCA, several of the exceptions were refined. n134
   In addition, the computer security research community finally persuaded legislators to add another exception
   to enable circumvention of technical protection systems necessary for legitimate testing of the security of
   computer systems. n135
 
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   n134. Compare H.R. 2281, 105th Cong. (1998) (as passed on Aug. 4, 1998), with Digital Millennium Copyright
   Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998).

   n135. See 17 U.S.C.A. 1201(j). This too had been the subject of testimony before the House Commerce
   Committee. See Commerce Hearing, supra note 44, at 27-30 (statement of Jonathan Callas).
 
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   B. Circumvention for Other Legitimate Reasons Should Be Privileged
 
   While the final version of the DMCA anti-circumvention provision responded to several significant concerns of
   the digital economy sector, it did so mainly by adopting specific exceptions. There are, however, many other
   legitimate reasons for circumventing technical protection systems that are not, strictly speaking, covered by
   the exceptions in the final bill. Five examples demonstrate that section 1201 should have an "or other
   legitimate purposes" exception to section 1201(a)(1).

   Suppose, for example, that a copyright owner had reason to believe that an encrypted work contained an
   infringing version of one of its works. The only way to find out whether the copyright owner's suspicion is valid
   may be to circumvent the technical protection system to get access to the encrypted material. Even if its
   suspicions proved correct, the copyright owner would have violated section 1201(a)(1)(A) in the course of
   discovering this. There is no exception in section 1201 to protect this kind of decryption activity.

   Or suppose that a content producer had licensed certain software that was essential to the development of
   its product (e.g., editing software used in the process of making motion pictures). In the course of a dispute
   about the performance quality of this software, the content producer might with  [*544]  hold payment of a
   royalty as a way of communicating its displeasure with the licensor's maintenance of the software. The
   software's licensor might then respond by activating a technical "self-help" system embedded in the software
   to stop the software from operating. n136 To deal with this development, the licensee might well attempt to
   circumvent the self-help feature now blocking access to the software because the licensee needed to use the
   software to finish its movie and because it regarded itself as having a legitimate claim of licensor breach to
   justify holding back the royalty. n137 However legitimate the claim or this activity, there is no exception to
   the anti-circumvention rule to protect the licensee in this situation.
 
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   n136. Software developers can embed specialized disabling subprograms in licensed software. These may
   cause the software to cease operation unless a new code has been made available to the licensee by the
   licensor. They can also be invoked via a network connection to the licensor's site or by a remote act by the
   licensor. For a discussion of public policy issues raised by technical self-help systems, see Pamela Samuelson,
   Embedding Technical Self-Help in Licensed Software, 40 Comm. ACM 13 (1997).

   n137. A model law to regulate licensing of computer information has proposed to validate, as a matter of
   contract law, a licensor's use of technical self-help systems as long as certain procedural steps are taken to
   protect licensee interests. See U.C.C. 2B-716 (Feb. 1999 Draft). See also Memorandum from Susan H. Nycum
   to Uniform Commercial Code Article 2B Reporter and Drafting Committee regarding Licensor Self-Help Revision
   of Proposed UCC 2B, at 1 (Jan. 27, 1997) available at <http://www.2bguide.com/docs/nycshelp.html>
   (expressing objections to proposed validation of technical self-help features in licensed software, speaking of
   them as a "trap for the unwary - in the extreme"); Memorandum from Michele Kane on behalf of Walt Disney
   Co. to Prof. Raymond T. Nimmer, Reporter for Article 2B, at 3 (Jan. 27, 1997), available at
   <http://www.2bguide.com/docs/mkane.html> (strenuously objecting to Article 2B's endorsement of technical
   self-help provisions in model licensing law as "unnecessary and unfair").
 
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   Two further examples will illustrate the narrowness of certain existing privileges in the DMCA. Suppose, for
   example, that a firm circumvented a technical protection system to stop software it had licensed from
   monitoring certain uses of the software in ways not contemplated in the license agreement and which the
   licensee regarded as unwarranted and detrimental to its interests. Although there is a "personal privacy"
   exception in the DMCA, n138 there is no general exception for circumventing to protect other confidentiality
   interests. Or suppose that a firm was considering making a multi-million dollar acquisition of a computer system
   whose producer asserted was highly secure. If this firm wished to test the veracity of the producer's
   assertions, without getting the producer's permission or over the  [*545]  producer's objection, it would seem
   to violate section 1201. Although there is a computer security testing exception in the Act, it only applies if
   one is already the owner or operator of the computer system being tested. n139 It should be noted here that
   many security flaws discovered in widely deployed systems have been found by researchers who tested the
   system without permission of either the owner or manufacturer of such systems. n140 These activities too are
   not covered by the computer security exception provided for in the DMCA.
 
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   n138. See 17 U.S.C.A. 1201(i). For a discussion of the concerns leading to adoption of this exception, see
   Commerce Hearing, supra note 44, at 12-18 (statement of Marc Rotenberg, Director, Electronic Privacy Info.
   Ctr.).

   n139. See 17 U.S.C.A. 1201(j).

   n140. See, e.g., John Markoff, Software Security Flaw Puts Shoppers on Internet at Risk, N.Y. Times, Sept.
   19, 1995, at A1.
 
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   Finally, because the DMCA recognizes that the anti-circumvention rules may have an impact on free speech
   and free press concerns, n141 it may be worth considering an example of this sort. Suppose that an employee
   of a major chemical company gave a reporter a disk containing a digital copy of a report and several
   photographs pertaining to a major chemical spill that the company was trying to cover up. If information on
   the disk was technically protected and the employee was not authorized by the company to provide the
   information to the reporter, it would appear that the reporter would violate section 1201(a)(1) if he
   circumvented the technical protection system to get access to this information, even if consideration of free
   press and free speech interests might suggest that such a circumvention was justifiable.
 
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   n141. See 17 U.S.C.A. 1201(c)(4).
 
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   One response to these examples might be to assert that copyright owners will generally not sue when these or
   other legitimate circumvention activities occur. However, in some of the examples given above, the technical
   protector might well have incentives to sue the circumventor. n142 Given that there are serious criminal
   penalties for willfully violating section 1201, n143 the overbreadth of this provision and the narrowness of
   existing exceptions will put many legitimate circumventors at unnecessary risk. If such suits are brought,
   courts may, of course, and probably will, find other ways to reach just results. They might, for example,
   decide that the "other defenses" provision of the anti-circumvention rule legitimized the circumvention, n144
   that some instances were within the spirit, even if not the letter, of an existing privilege, or that there was
   insufficient harm  [*546]  to the legitimate interests of the person challenging the circumvention activity to
   justify imposing liability. n145 However, there should be a general purpose "or other legitimate purposes"
   provision in section 1201 so that courts will not have to thrash to reach appropriate results. This would add
   flexibility, adaptability, and fairness to the law. In many other parts of copyright law - with the fair use
   doctrine, for example, or the distinction between ideas and expressions - Congress has trusted the common
   law process to distinguish between legitimate and illegitimate activities. It could (and should) have done so
   with respect to circumvention legislation as well.
 
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   n142. See supra note 136 (licensor whose self-help feature might be defeated by a licensee).

   n143. See 17 U.S.C.A. 1204.

   n144. See id. 1201(c)(1).

   n145. Section 1203(a) requires that a person be "injured by a violation of section 1201" in order to bring a suit
   to challenge a violation of this provision. Id. 1203(a).
 
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   It would have been especially appropriate to adopt a general purpose "other legitimate purpose" provision
   because the anti-circumvention ban is an unprecedented provision for copyright law as to a significant new
   technology issue with which neither Congress nor the courts have much experience. n146 The lack of a
   general purpose exception is particularly troubling in view of the harsh criminal and civil provisions in the
   statute, which may have a chilling effect on legitimate activities, including those affecting free speech. It
   could also put at risk some legitimate activities in the digital economy that will impede the growth of
   e-commerce, as will become more apparent in the next section.
 
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   n146. Professor Julie Cohen, in commenting on the structure of section 1201, observed that this provision is
   almost European in its construction. Typically, European legislators formulate laws as though all contingencies
   can be foreseen and the rule can be established for all time. Europeans typically provide a broad rule and only
   limited exceptions to the rule. American laws more typically have some openness that allow the laws to adapt
   to new circumstances. This may provide American law with needed flexibility in times of rapid technological
   change. Yet, section 1201 deviates from this general American approach. Conversation with Julie E. Cohen
   (Jan. 1999).
 
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   VI. THE ANTI-DEVICE PROVISIONS SHOULD BE NARROWED BY LEGISLATIVE MENDMENT OR JUDICIAL
   INTERPRETATION
 
   The text of the DMCA and its legislative history clearly demonstrate that Congress intended to ensure that
   users would continue to enjoy a wide range of noninfringing uses of copyrighted works, even if copyright
   owners used technical protection systems to impede them. This is evident in the DMCA's recognition that
   circumventions for fair use, free speech, and  [*547]  free press purposes should be lawful. n147 It is also
   apparent in the provision enabling the Librarian of Congress to exempt certain classes of users or works from
   the general anti-circumvention rule when necessary to preserve socially valued noninfringing uses. n148 In
   addition, it explains why Congress adopted some exceptions to the act-of-circumvention ban, notably, the
   interoperability privilege. n149 As the last part has shown, if Congress had not been blinded by the politics of
   the day, it would likely have recognized other legitimate reasons to engage in acts of circumvention.
 
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   n147. See 17 U.S.C.A. 1201(c)(1), (c)(4), discussed supra notes 99, 107, 113-116 and accompanying text.
   This same subsection indicates that it also does not intend to enlarge or diminish vicarious or contributory
   copyright infringement. See id. 1201(c)(2).

   n148. See id. 1201(a)(1)(B)-(D).

   n149. See id. 1201(f). This exception preserves the fair use privilege recognized in Sega Enterprises, Ltd. v.
   Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992), that permits the intermediate copying of computer programs
   when necessary to obtain information in order to achieve interoperability among independently developed
   computer programs.
 
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   If Congress intended for circumvention of technical protection systems to be legal when done for legitimate
   purposes, it might seem obvious that Congress should be understood to have intended to enable users to
   effectuate the circumvention privileges it recognized. n150 Although it will not always be necessary for a
   legitimate circumventor to make or use a circumvention technology to accomplish a privileged circumvention
   (e.g., enciphered text might be decoded by purely mental activity), most often this will be necessary. n151
   The deepest puzzle of section 1201 is whether Congress implicitly intended to allow the development and/or
   distribution of technologies necessary to accomplish legitimate circumvention activities, or whether, in
   essence, it created a number of meaningless privileges.
 
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   n150. See Benkler, supra note 24, at 416 ("If the act of circumvention were privileged to users, particularly if
   it were privileged as a matter of free speech, it would be difficult to sustain a prohibition on manufacture and
   sale of the products necessary to enable users to engage in circumvention.").

   n151. See, e.g., James R. Davis, On Self-Enforcing Contracts, the Right to Hack, and Willfully Ignorant Agents,
   13 Berkeley Tech. L.J. 1145, 1147 (1998) (questioning whether a "right to hack" for fair use would be
   meaningful, given that most users would be unable to overcome technical protection systems without tools
   designed for that purpose).
 
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   Seemingly relevant to addressing this question are some curious features of section 1201 that close study of
   this complex provision reveals. First, several exceptions to the anti-circumvention rule specifically authorize
   the creation of tools necessary to achieving a legitimate circumvention activity (e.g., the encryption research
   and interoperability privi  [*548]  leges), n152 while several others (e.g., the law enforcement privilege and
   the privacy privilege) do not. n153 Secondly, while the interoperability privilege exempts necessary tools from
   both device provisions of section 1201, n154 the encryption and security research privileges exempt tools only
   from the access-device provision, not from the control-device provision. Yet, it would seem that encryption
   and security research would often require testing both of access and of control components of technical
   protection systems. n155 Thirdly, section 1201 contains no provision enabling the development or distribution
   of circumvention tools to enable fair use or other privileged uses in terrain which section 1201(a)(1)(A) doesn't
   reach (i.e., making fair uses of lawfully acquired copies). If Congress intended to recognize a right to "hack" a
   technical protection system to make fair uses, this right could be undermined if it could not be exercised
   without developing a tool to bypass the technical protection system or otherwise getting access to such a
   tool. n156 Under some interpretations of section 1201(b)(1), development or distribution of such a tool would
   be unlawful.
 
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   n152. See 17 U.S.C.A. 1201(f)(2), (g)(4).

   n153. See id. 1201(e), (i). There is, however, a better textual argument for inferring a tool-making privilege for
   law enforcement activities than for inferring tool-making authority to enable privacy protection. Section
   1201(i) limits the application of section 1201(a)(1)(A), whereas 1201(e) indicates that "this section does not
   prohibit any lawfully authorized investigative <elip> activity" of a government agent.

   n154. See id. 1201(f)(2).

   n155. See id. 1201(g)(4), (j)(4).

   n156. See Cohen, supra note 63, at 174-78 (discussing lawful tampering with technical protection systems
   and its implications for the availability of tools to accomplish this).
 
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   Consider, for example, the Xerox PARC researcher who circumvented a movie's technical protection system in
   order to make a fair use clip for the Washington Redskins' litigation. n157 It was necessary for him to develop
   a tool to enable him to bypass the technical protection system to make the clip. Suppose that the motion
   picture copyright owner found out about the circumvention and decided to make an example of this
   researcher, suing him for statutory damages for violating section 1201(b)(1). n158 On a strict interpretation of
   this subsection, the researcher might seem to be in trouble. The tool was, after all, "primarily designed <elip>
   for the purpose of circumventing protection afforded by a technological  [*549]  measure that effectively
   protects a right of the copyright owner under this title in a work or a portion thereof." n159 However, one can
   easily imagine a court deciding that the researcher's code did not run afoul of section 1201(b)(1). The code
   might be viewed as a special purpose tool made for the limited purpose of effectuating fair use rights. In view
   of its lack of commercial significance and the absence of deleterious effects of the sort that the anti-device
   provisions were intended to reach, n160 a court might decide that this code should not be held to violate this
   law. n161
 
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   n157. See supra note 114-116 and accompanying text.

   n158. See 17 U.S.C.A. 1203(c)(3). This researcher would likely be spared from criminal liability for violation of
   1201(b) because he was serving as a pro bono publico expert witness in this case. Section 1204(a) requires
   that a violation of 1201 not only be willful, but done for commercial advantage or private financial gain for
   criminal liability to be imposed. See id. 1204(a).

   n159. Id. 1201(b)(1).

   n160. See House Manager's Report, supra note 63, at 9-13.

   n161. Alternatively, the court could find only a technical or de minimis violation of the statute in this instance.

 
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   Would the result be different if the researcher asked a co-worker or a friend to develop the tool instead of
   doing it himself? Or would the result be different if the researcher shared this tool with a co-worker who
   needed to make a fair use circumvention of a different movie? Even though he might be "providing" this
   technology to another person, perhaps he would escape liability because he was not "trafficking" in this
   technology or "offer[ing it] for sale" which are the principal activities Congress meant to curb by enacting this
   part of DMCA. n162 However, it is fair to observe that courts would have to read some limiting language into
   section 1201(b)(1) to decide that the researcher would not be liable in all three situations.
 
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   n162. 17 U.S.C.A. 1201(b)(1).
 
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   An undoubtedly closer question is what courts would do about a technology distributed in the mass-market for
   purposes of enabling privileged circumventions. Consider, for example, how the 1985 Vault v. Quaid n163 case
   would fare under the DMCA anti-device provisions. Vault sued Quaid for  [*550]  contributory copyright
   infringement based on Quaid's development and sale of a program called Ramkey. Quaid's customers could use
   Ramkey to defeat Vault's Prolok copy-protection software (which Vault sold to other software developers to
   protect their own software from unauthorized copying). By spoofing Vault's copy-protect system, n164 Quaid's
   customers could make unauthorized copies of the third-party software protected by Vault's program. n165
   Quaid successfully defended against the contributory infringement claim by showing that Ramkey had a
   substantial noninfringing use, namely, to enable users to effectuate their rights under copyright law to make
   backup copies. n166
 
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   n163. 775 F.2d 638 (5th Cir. 1985).

   n164. In essence, this and other "spoofing" software generally operate by emitting a signal which will be
   interpreted by the other firm's copy-protection software (or conceivably hardware) as an indication that the
   system is operating effectively.

   n165. Vault also claimed direct copyright infringement, trade secret misappropriation, and breach of contract.
   See Vault, 847 F.2d at 257-58.

   n166. See id. at 262 (relying on the Supreme Court's decision in Sony Corp. of America v. Universal City
   Studios, Inc., 464 U.S. 417 (1984), which rejected a claim that Sony had contributorily infringed Universal's
   movie copyrights by selling Betamax machines which enabled home copying of these movies off the broadcast
   television because of noninfringing uses of the Betamax machine).
 
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   Quaid would probably not run afoul of the access-device provision of section 1201(a)(2). n167 However, less
   clear is whether it could successfully defend against a section 1201(b)(1) claim. Suppose that Quaid's
   president testified that his primary purpose in designing and producing Ramkey was to enable his customers to
   do legitimate backup copying. Suppose further that the marketing literature for Ramkey emphasized this
   purpose of the program and even warned potential customers not to use Ramkey to make infringing copies. If
   a court considered this evidence credible, it would probably save Quaid from criminal prosecution for violating
   the second anti-device norm, because it would show a lack of wrongful intent. But would it save Quaid from
   civil liability? n168
 
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   n167. Quaid could probably argue that Ramkey was primarily designed to enable bypassing of the Prolok
   system for lawfully acquired copies of protected programs. This would seem to make 1201(a)(2) inapplicable to
   the Vault v. Quaid-like controversies.

   n168. An interesting question is who could sue Quaid under 1201(b)(1). The Clinton Administration's Green
   Paper on Intellectual Property and the National Information Infrastructure suggested that the maker of a
   protective technology, such as Vault, would not have standing to challenge the maker of circumvention
   technologies. See U.S. Gov't Working Group On Intellectual Property, Green Paper On Intellectual Property And
   The National Information Infrastructure 130 (1994). Copyright owners who used technical protection systems
   to protect their works would seem to have standing to initiate the suit. This could mean that a firm such as
   Quaid would thus be faced, not just with one lawsuit, but potentially thousands to defend. As will be
   discussed further, see infra note 194 and accompanying text, in none of these lawsuits would the plaintiff
   have to demonstrate that any underlying act of infringement actually took place. The White Paper was silent
   on the issue of standing. Nor is the issue expressly dealt with in the DMCA. Proposals by representatives of
   Macrovision Corp., which makes technical protection systems, to change 17 U.S.C.A. 1203(a) to facilitate its
   ability to obtain standing in such a suit were not heeded by Congress. See Judiciary Hearing, supra note 17, at
   271-77 (statement of Mark S. Belinksy, Vice President, Copy Protection Group, Macrovision Corp.).
 
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   To answer that question, courts would have to grapple with a seeming inconsistency in the statute. On the
   one hand, the DMCA seems to outlaw technologies if their primary purpose is to circumvent a technical
   protection measure that effectively protects a right of a copyright owner to con  [*551]  trol its work (in this
   case, a right to control illegal copying). n169 On the other hand, the DMCA recognizes that fair use-like
   circumventions should be lawful. n170 Backup copying is a specially privileged activity in the copyright statute.
   n171 Because the copyright owner doesn't have a statutory right to control backup copying, perhaps a
   spoofing technology intended to enable backup copying should be outside the statute. It is important to
   understand that circumvention for backup copying purposes generally cannot occur without access to such a
   technology.
 
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   n169. See 17 U.S.C.A. 1201(a)(2), (b)(1).

   n170. See id. 1201(c)(1), discussed supra notes 99, 107, 113-116, 147 and accompanying text.

   n171. See 17 U.S.C. 117 (1994).
 
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   So if most lawful users of Prolok-protected software lack the skills to write a Ramkey-equivalent, perhaps it
   should be lawful to make and distribute a technology to effectuate the backup copy privilege. It is unclear
   whether Congress intended for the technologically savvy who could "do it themselves" to be the only ones
   who could engage in privileged acts of circumvention. Yet, as the example of the Xerox researcher illustrates,
   even the technically sophisticated will often need to develop a tool to accomplish a privileged circumvention;
   this would seem to put them at risk under a strict reading of section 1201(b)(1). n172
 
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   n172. Even they, of course, may have to manufacture a technology or provide a service to make backup
   copies, in apparent violation of section 1201's anti-device rules. See Benkler, supra note 24, at 416.
 
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   Potentially relevant to whether the distribution of a tool like Ramkey is lawful is section 1201 (c)(2), which
   states that nothing in section 1201 "shall enlarge or diminish vicarious or contributory liability for copyright
   infringement in connection with any technology, product, service, device, component, or part thereof." n173 If
   what this subsection purports is true, perhaps the result in Vault v. Quaid would be the same after DMCA as
   before. One can imagine some courts deciding to construe section 1201(b)(1) narrowly so that the honest
   maker of a Ramkey-equivalent for purposes of enabling backup copying would be able to do so. But they are
   certainly not constrained to do so.
 
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   n173. 17 U.S.C.A. 1201(c)(3). Recall that the main claim made by Vault against Quaid was a contributory
   infringement claim, and it was unsuccessful. See supra note 163-166 and accompanying text.
 
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   Moreover, the major copyright industries that supported a broad ban on circumvention technologies would
   assert that courts should not construe the DMCA so narrowly. They would likely consider Quaid's argu  [*552]
   ment that Ramkey was primarily designed and produced to enable lawful backup copying as a ruse. Moreover,
   they would likely point out that Ramkey doesn't just enable lawful backup copying; it enables illegal copying as
   well. They would regard the danger that Ramkey would be used for illegal purposes - regardless of Quaid's
   intent - as so substantial as to justify banning this technology. The DMCA's anti-device provisions were
   broadly drafted, they would argue, to address this very danger. n174 They would also consider it an
   unnecessary burden for copyright owners to have to prove that the primary use of a technology like Ramkey
   was to engage in infringement. n175 This would be difficult to do, especially for a technology that was about
   to be introduced into the market. When the dangers of infringement are high, they would argue, the
   technology ought to be deemed illegal if its purpose is to circumvent a technical protection system copyright
   owners are using to protect rights granted to them by copyright law. n176 According to this view, Ramkey is
   illegal under the DMCA. The major copyright industry supporters of the broad anti-device provisions of the
   DMCA would probably like nothing better than to make Congress' apparent preservation of noninfringing uses
   into a meaningless promise.
 
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   n174. See Judiciary Hearing, supra note 17, at 57 (statements of Hon. Bruce A. Lehman, Commissioner of
   Patents and Trademarks, Patent and Trademark Office).

   n175. See Commerce Hearing, supra note 44, at 54-58 (prepared statement of Steven J Metalitz on behalf of
   the Motion Picture Ass'n of America) (objecting to proposals that would require copyright owners to prove that
   circumvention or circumvention devices would cause infringement).

   n176. There is no "authority of law" exception in the DMCA's anti-device provisions, as there was in the White
   Paper's original proposal for an anti-device regulation. See White Paper, supra note 15, app. 1 at 6. How, if at
   all, this might affect the scope of the DMCA's anti-device provisions remains to be seen.
 
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   Different judges might reach different conclusions on a Ramkey-like case, but consider how they might deal
   with another plausible "spoofing" technology. Intel has recently developed a line of semiconductor chips with a
   built-in identification system for each processor. n177 Privacy advocates have raised concerns about the
   threat that processor identification systems pose for personal privacy on the Internet. n178 In response to
   these  [*553]  concerns, Intel announced its intent to ship these chips with the processor identity function
   "off." n179 Suppose, however, that Microsoft develops Windows 2000 as a "trusted system" technology n180
   to run on this line of Intel chips and that it requires that licensees of Windows 2000 agree to keep the Intel
   identification system on at all times. n181 Having the identifier on, Microsoft might well contend, is a critical
   component to the effectiveness of its trusted system technology. Suppose further that Windows 2000 will not
   install until the Intel identifier is on, and that the installation software, after a user clicks "I agree" to the
   conditions of the license, will actually turn the identifier on if necessary. n182 If a privacy advocacy group
   developed and distributed software to spoof Windows into thinking the Intel identifier was on when it was not
   in order to protect user privacy, or if the group posted information about how users could turn the identifier
   off even when using Windows 2000, would it be violating section 1201(b)(1)? n183
 
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   n177. See Peter H. Lewis, Whoosh! The Next Pentium Chip Is On Its Way, N.Y. Times on the Web (Jan. 14,
   1999) <http://www.nytimes.com/library/tech/99/01/circuits/articles/12pete.html>.

   n178. See Jeri Clausing, Privacy Groups Seek Recall of Intel Chip, N.Y. Times on the Web (Jan. 29, 1999)
   <http://www.nytimes.com/library/tech/99/01/cyber/articles/29privacy.html>. Although the threat the Intel
   processor ID poses for privacy has gotten the most attention in the press, the potential for the Intel
   processor ID to be used to prevent "piracy" of software has also been recognized. See Peter Wayner, Debate
   on Intel Chip Misses Piracy Issue, N.Y. Times on the Web (Jan. 30, 1999)
   <http://www.nytimes.com/library/tech/99/01/cyber/articles/30chip.html>.

   n179. See Jeri Clausing, Intel Alters Plan Said to Undermine PC Users' Privacy, N.Y. Times, Jan. 26, 1999, at
   A1.

   n180. "Trusted system" is a term used to describe a computer and software system constructed to make it
   impossible (or at least very difficult) to make unauthorized copies or uses of legally protected works. See Mark
   Stefik, Shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us To Rethink Digital
   Publishing, 12 Berkeley Tech. L.J. 137 (1997).

   n181. This is no mere conjecture. Microsoft is reportedly intending to deploy trusted system software with the
   next version of Windows. See Jason Chicola et al., Digital Rights Architectures for Intellectual Property
   Protection 99 (1998), paper prepared for Ethics and Law on the Electronic Frontier, Massachusetts Institute of
   Technology, available at
   <http://swissnet.ai.mit.edu/6805/student-papers/fall98-papers/trusted-systems/trustsys.doc> (MS Word
   document). This is especially worrisome since Microsoft has a monopoly position in the market for operating
   systems software, making it largely immune from competitive pressures that might limit its ability to impose
   trusted system technology on the market.

   n182. Another important policy initiative affecting the enforceability of mass-market licenses of this sort is
   proposed Article 2B of the Uniform Commercial Code. See generally Symposium, Intellectual Property and
   Contract Law in the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future
   of Transactions in Information and Electronic Commerce, 13 Berkeley Tech. L.J. 809 (1998); Symposium,
   Intellectual Property and Contract Law for the Information Age: The Impact of Article 2B of the Uniform
   Commercial Code on the Future of Information and Commerce, 87 Calif. L. Rev. 1 (1999).

   n183. If the Pentium III chip ID is designed to allow for copyright protection, as Intel claims it is, it might be a
   technology which effectively controls access to copyrighted works under 1201. If so, it would seem that a
   hardware device which disables the Processor Serial Number could be subject to the anti-device provisions.
   Take, for example, IBM's new hardware disablement feature: "IBM plans to go the extra step and disable the
   processor ID feature at the BIOS (or hardware) level in our Pentium III client systems," Letter from Chistopher
   G. Caine on behalf of IBM Corp. to Jerry Berman, Executive Director of the Center for Democracy and
   Technology (Jan. 24, 1999), available at <http://www.cdt.org/privacy/ibmletter.shtml>.
 
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    [*554]  Under a very strict interpretation of section 1201(b)(1), either act might be viewed as illegal. n184 It
   is, however, difficult to believe that most judges would find providing either software or information to enable
   circumvention of this component of a technical protection system to fall within the DMCA anti-device rules.
   The DMCA, judges might point out, authorizes circumvention in order to protect personal privacy. n185 While
   this provision doesn't specifically authorize the development or use of circumvention technologies to
   accomplish this legitimate act, judges might conclude that Congress must have intended for people to be able
   to develop or use technology to accomplish the privileged privacy act, or that the Intel identifier was not a
   component of an effective technical measure. To avert an injustice, judges would likely find an ambiguity in
   the statute or read in appropriate limiting language. This is clearly not the kind of "black box" circumvention
   device that Congress had in mind when adopting DMCA. n186 To hold otherwise would, in effect, allow
   Microsoft to employ the anti-circumvention provisions of DMCA to impose trusted system technology on the
   public.
 
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   n184. Posting information on the website might be seen as providing a service to the circumventors.

   n185. See 17 U.S.C.A. 1201(i) (West Supp. 1999). This provision is extremely complicated and would seem to
   be very narrow. It is not clear it would apply to the Microsoft example.

   n186. See supra note 93 and accompanying text and infra note 231.
 
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   It is, of course, an irony that so much of Congressional debate on section 1201 focused on refining the
   act-of-circumvention provision given that the anti-device provisions are, as a practical matter, by far the
   more important rules in this section. n187 Those who have followed the Clinton Administration's digital
   copyright policy over the last five years should realize that the anti-device provisions were what
   Administration officials and major copyright industry allies really cared about. The legislation proposed in the
   Administration's 1995 White Paper did not include any provision about circumvention of technical protection
   measures as such. n188 It sought only to outlaw technologies whose "primary purpose or effect" was  [*555]
   to enable the circumvention of technical protection measures. n189 Was this lack of attention to
   circumvention an oversight? Or did the Administration believe that it would be difficult to detect individual acts
   of circumvention, and as long as such acts were done on an isolated, individual basis (due to the unavailability
   of circumvention devices), the danger to copyright owners would be small? It is difficult to discern why
   circumvention as such escaped attention until mid-1997 when the WIPO treaty implementation legislation was
   first introduced in Congress. n190 Far easier to discern has been the Administration's goal of stopping the
   manufacture and distribution of technologies with circumvention-enabling uses, either by commercial firms or
   by technically savvy Robin Hoods. n191
 
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   n187. See Benkler, supra note 24, at 416.

   n188. See White Paper, supra note 15, at 230-36.

   n189. See id., app. 1 at 6.

   n190. See supra note 86.

   n191. Professor Benkler likens this strategy to banning VCRs in order to stop home taping. See Benkler, supra
   note 24, at 416. Speaking of VCRs, little noticed in DMCA were its provisions requiring consumer electronics
   companies to build specific anti-copying technologies into future VCRs. See 17 U.S.C.A. 1201(k) (West Supp.
   1999).
 
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   Eventually someone in the Administration must have realized that it was a bit strange to be proposing to make
   illegal the manufacture and distribution of technologies whose ordinary uses were not themselves illegal. To
   justify a broad ban on circumvention technologies, a broad ban on the act of circumvention seemed to be
   needed. This explains why the Administration and its allies were so insistent that section 1201(a)(1) be
   structured to broadly ban acts of circumvention. It also explains why the Administration sought to limit the
   proliferation of exceptions to the anti-circumvention ban, and why such exceptions as were added to the
   statute were very narrow. The broader the acknowledged range of legitimate circumventions, the narrower
   should be an appropriately crafted regulation of circumvention technologies. The Administration may have
   hoped that in all the hoopla about crafting exceptions to section 1201(a), Congress would not notice that its
   seeming recognition of the legitimacy of circumventions for noninfringing purposes in section 1201(c)(1) might
   effectively be nullified by section 1201(b)(1), which arguably broadly bans technologies necessary to
   accomplish such circumventions.

   When testifying before Congress, proponents of the Administration's  [*556]  anti-device rules repeatedly
   emphasized that the legislation was needed to stop deliberate and systematic piracy by "black box" providers.
   n192 Yet, the anti-device provisions adopted by Congress are far broader than this, providing a basis to
   challenge an unacceptably wide range of technologies that have circumvention-enabling uses. This creates a
   potential for "strike suits" by nervous or opportunistic copyright owners who might challenge (or threaten to
   challenge) the deployment of a new information technology tool whose capabilities may include circumvention
   of some technical protection system. No doubt some expert can be found to say that deployment of a
   particular technology in the market would meet one of the three conditions in the anti-device provisions,
   giving plausibility to the suit. Weak as such testimony might be, it may be enough to extract a settlement sum
   from the information technology firm. n193
 
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   n192. See Judiciary Hearing, supra note 17, at 212-16 (statement of Gail Markels, General Counsel and Senior
   Vice President, Interactive Digital Software Ass'n) (relying on example of circumvention device with no
   legitimate purpose that had been used to pirate games); id. at 273-77 (prepared statement of Mark Belinsky
   on behalf of Macrovision Corp.) (emphasizing the need to outlaw pirate devices). See also NII Copyright
   Protection Act of 1995 (Part II): Hearings on H.R. 2441 Before the Subcomm. on Courts and Intellectual
   Property of the House Comm. on the Judiciary, 104th Cong. 23 (1996) (prepared statement of Jack Valenti,
   President and CEO, Motion Picture Ass'n of America) ("But all security measures, no matter how sophisticated,
   can be circumvented by clever hackers. Therefore, the law must provide clear and effective sanctions against
   those who would violate the security of the NII. This requires more than mere civil remedies. Criminal sanctions
   are essential. Too many NII bandits, some operating totally in the underground economy, will scoff at the
   threat of civil damages, which many regard as simply a cost of doing business. There must be criminal
   penalties attached to deliberate, systematic acts of circumvention if such acts are to be seriously lessened.").
 

   n193. Some commentators even perceive the anti-device rules of 1201 as threatening the distribution of many
   widely used editing and related software tools. See Peter Wayner, The Copyright Boomerang, Salon Magazine
   (Nov. 20, 1998) <http://www.salonmagazine.com/21st/feature/1998/11/20feature.html> (considering whether
   "cutting and pasting" will be rendered unlawful).
 
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   The potential for strike suits becomes stronger if one realizes that it is not necessary (or arguably even
   relevant) to litigation under the anti-device provisions of DMCA whether any act of underlying infringement
   (e.g., illegal copying of a protected work) has ever taken place. The mere potentiality for infringement will
   suffice to confer rich rewards on a successful plaintiff. Consider, for example, a recent lawsuit brought by the
   maker of a proprietary game console against the maker of emulation software that permits games initially
   developed for the proprietary console to be played on iMac computers. n194 Relying on the DMCA anti-device
   provision, the plaintiff is seeking up to $ 25,000 per unit sold in damages because the emulation software
   allegedly bypasses an anti-copying feature in  [*557]  the games. n195 The plaintiff did not allege and need
   not prove any actual illicit copying by users of the defendant's emulation software.
 
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   n194. See Complaint, Sony Computer Entertainment, Inc. v. Connectix Corp., Civ., No. 99-0390 (N.D. Cal.,
   filed Jan. 27, 1999) [hereinafter Sony Complaint]. For a discussion of this lawsuit, see Band & Isshiki, supra
   note 65.

   n195. See Sony Complaint, supra note 194, at 7-8. This lawsuit is particularly disturbing because the software
   at issue was named "Best of Show" at Macworld Expo shortly before the lawsuit was filed. See Best of Show,
   Macworld Online (visited Apr. 21, 1999) <http://macworld.zdnet.com/expo/report/bestofshow.html>.
 
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   The anti-device provisions of section 1201 are not predictable, minimalist, consistent, or simple, as the
   Framework principles suggest that they should be. Due to inconsistencies in the statute, it is unclear whether
   section 1201's anti-device provisions would be interpreted to allow the development and distribution of
   technologies to enable legitimate uses. Boiled down to its essence, this presents the question of whether
   Congress should be understood to have made an empty promise of fair use and other privileged circumvention.
   Unless the anti-device provisions of the DMCA are modified, either by narrow judicial interpretation or by
   legislative amendments, n196 they are likely to have harmful effects on competition and innovation in the high
   technology sector. This is not good news for the digital economy.
 
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   n196. A predictable, minimalist, consistent, and simple anti-device norm might outlaw the manufacture and
   distribution of technologies intended to facilitate copyright infringement or of technologies with limited
   legitimate uses.
 
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   VII. POLICYMAKERS SHOULD PERIODICALLY REVIEW BOTH THE ACT AND DEVICE PROVISIONS
 
   The Clinton Administration did not recommend or support inclusion of any provision in the WIPO treaty
   implementation legislation to assess the impact of the DMCA's anti-circumvention norms. n197 This might seem
   surprising in view of the breadth of these norms, their unprecedented character, and their potential impact on
   both information technology markets and on public access to information. Even if the Administration had
   initially been unaware of these potential negative impacts, it could not have failed to become aware of them
   during the legislative process. n198 The Administration was surely aware that the case for the
   act-of-circumvention and anti-device norms was long on rhetoric and short on actual evidence of  [*558]
   harm to copyright owners. n199 Yet, the Administration did nothing to support post-legislative review of these
   norms.
 
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   n197. See H.R. 2281, 105th Cong. (1997) (as originally introduced into Congress on July 29, 1997); Judiciary
   Hearing, supra note 17, at 34-42 (statement of Bruce Lehman) (endorsing legislation but not asking for a
   study provision).

   n198. See Judiciary Hearing, supra note 17, at 148-56 (statement of Robert L. Oakley); id. at 64-68
   (statement of M.R.C. Greenwood).

   n199. One of the few concrete examples of a device claimed to have contributed to international piracy was
   that offered in Judiciary Hearing, supra note 17, at 213-216 (statement of Gail Markels) (discussing "Game
   Doctor" said to have been used to pirate game software in Hong Kong and Taiwan).
 
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   This is in striking contrast to the periodic review process endorsed by the Administration as to another
   legislative initiative affecting digital economy markets, namely, the proposal to create a new form of legal
   protection for the contents of databases. n200 Writing on behalf of the Administration concerning its
   reservations about a bill under consideration in the second session of the 105th Congress, Andrew Pincus,
   General Counsel to the Commerce Department, stated:
 
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   n200. See Letter from Andrew Pincus, General Counsel of the U.S. Dep't of Commerce, to Sen. Patrick Leahy 3
   (Aug. 4, 1998) (on file with author) [hereinafter Pincus Letter]. After the House passed the Collections of
   Information Antipiracy Act, H.R. 2652, 105th Cong. (1998), Mr. Pincus wrote to Senator Leahy to express the
   Administration's reservations about the wisdom of this bill and about its constitutionality. See Pincus Letter,
   supra, at 1.
 
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   The Administration believes that, given our limited understanding of the future digital environment and the
   evolving markets for information, it would be desirable for the [database] bill to include a provision for an
   interagency review of the law's impact at periodic intervals following implementation of the law. This would be
   consistent with the laws and proposed laws in other emerging technologies where Congress has mandated
   examination of a new law's economic impact. n201
 
   At least one of the database bills seemingly under consideration in the 106th Congress contains a study
   provision to assess the impact of the new law. n202 This conforms to the Administration's proposal and to
   Framework principles. Much the same comment might have been made about the anti-circumvention norms of
   the DMCA.
 
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   n201. Pincus Letter, supra note 200, at 3. The letter proposed that "such a study might be conducted under
   the auspices of the Secretary of Commerce in consultation with the Office of Science and Technology Policy
   and the Register of Copyrights." Id.

   n202. See 145 Cong. Rec. S322 (daily ed. Jan. 19, 1999) (provision entitled "Report to Congress," from one of
   three potential database bills referred to by Sen. Hatch).
 
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   Even though the Administration did not support inclusion of study provisions in the DMCA, section 1201
   actually does contain a study provision that will provide an opportunity to review some impacts of the anti-
    [*559]  circumvention regulations. n203 In response to the strong concerns expressed by librarians and
   educators about the potential negative impacts that broad anti-circumvention provisions might have on fair
   uses of copyrighted works and on access to information and to public domain works, n204 the House
   Commerce Committee decided that there should be a two-year moratorium on enforcement of the
   act-of-circumvention provision. n205 It also proposed a study to determine whether noninfringing uses were
   being adversely affected by technical protection systems. If so, the Commerce Committee's version of the bill
   would have waived application of the anti-circumvention norm as to the affected works or users. n206
 
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   n203. See 17 U.S.C.A. 1201(a)(1)(B)-(D) (West Supp. 1999). Section 1201 also contains a provision for
   studying the impact of the encryption research provision. Id. 1201(f)(5).

   n204. See supra note 117 and accompanying text.

   n205. See Commerce Panel Clears Digital Copyright Bill With Further Concessions On Fair Use, 56 BNA Pat.,
   Trademark & Copyright J. 326, 326 (1998).

   n206. See id. As Professor Benkler has pointed out, this would not stop copyright owners from employing
   technical protection systems to inhibit noninfringing uses; it would only allow circumvention to obtain access.
   See Benkler, supra note 24, at 428.
 
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   The Commerce Committee's insistence on the moratorium and an impact study proved surprisingly persuasive.
   Section 1201(a)(1)(A) provides that the general anti-circumvention ban will not take effect until two years
   after enactment of the legislation. n207 Subsections (C) and (D) call upon the Librarian of Congress to
   conduct periodic studies to determine whether certain classes of users or works should be exempt from the
   ban because technical protection systems are impeding the ability to make noninfringing uses of copyrighted
   works. n208 Subsection (B) goes on to provide the statutory basis for granting such an exemption to the
   classes of works or users determined by the Librarian to be adversely affected by the anti-circumvention
   norm. n209 The DMCA calls for the Librarian's first study to be completed before the anti-circumvention
   moratorium ends. n210
 
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   n207. 17 U.S.C.A. 1201(a)(1)(A) (West Supp. 1999).

   n208. The first study is to be completed two years after the date of DMCA's enactment. See 17 U.S.C.A.
   1201(a)(1)(A) (West Supp. 1999). Follow-on studies are to be conducted every three years thereafter. See
   id. 1201(a)(1)(C). Given how weak was the showing that gave rise to the DMCA's anti-device provisions, it
   would seem that the showing of interference with lawful uses ought not to be too rigorous. However, the
   House Manager's report on the legislation would seem to anticipate a relatively high standard of proof. See
   House Manager's Report, supra note 63, at 6-7.

   n209. See 17 U.S.C.A. 1201(a)(1)(B) (West Supp. 1999). It appears that any moratorium resulting from such a
   determination will last for three years. Id. 1201(a)(1)(D). The rulemaking procedure set forth in
   1201(a)(1)(B)-(D) may, however, be unconstitutional because the Librarian of Congress is not an executive
   branch official. See Band & Isshiki, supra note 65, at 7.

   n210. See 17 U.S.C.A. 1201(a)(1)(A) (West Supp. 1999).
 
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    [*560]  The DMCA directs the Librarian of Congress to consider four factors in carrying out this study:
 

 
   (i) the availability for use of copyrighted works, (ii) the availability for use of works for nonprofit archival,
   preservation, and educational purposes, (iii) the impact [of] the prohibition <elip> on criticism, comment, news
   reporting, teaching, scholarship, or research, [and] (iv) the effect of circumvention of technical measures on
   the market for or value of copyrighted works." n211
 
   The Librarian has authority to consider "such other factors as the Librarian considers appropriate." n212 The
   DMCA is quite clear, however, that the Librarian's determinations cannot be asserted as a defense to an
   anti-device claim. n213 Although users would be entitled, after the Librarian's determination, to "hack"
   technical protection systems for any classes of works whose noninfringing uses had been inhibited, the
   no-defense-to-an-anti-device-claim subsection would appear to make such user self-help available only if one
   could accomplish the act without a device, once again raising the specter of Congress having created a
   meaningless privilege. As Professor Benkler has pointed out, the Librarian has no power to tell copyright owners
   to stop using technical protection systems that are impeding noninfringing uses. n214 Thus, it is quite possible
   that noninfringing uses will continue to be substantially impeded, notwithstanding the Librarian's determination
   and rulemaking concomitant to it. Surely, this should be the subject of further study.
 
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   n211. Id. 1201(a)(1)(C). Another subsection of the DMCA requires the Register of Copyrights and the
   Assistant Secretary for Communications and Information of the Commerce Department to study the impact of
   the encryption research exception. See id. 1201(g)(5).

   n212. Id. 1201(a)(1)(C).

   n213. See id. 1201(a)(1)(E).

   n214. See Benkler, supra note 24, at 428.
 
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   While the study provisions in DMCA are surely better than nothing, n215 they fall far short of the periodic
   review and reporting process appropriate to the unprecedented nature of the anti-circumvention regulations.
   n216 To  [*561]  limit an assessment of the circumvention ban to a narrow range of possible effects would
   ignore the wider swath of harm the provision may do. n217 Besides, the device ban is the true heart of the
   anti-circumvention provisions of the DMCA. It is integrally interrelated with the circumvention activity ban.
   n218 To assess the act-of-circumvention ban without considering the device ban is to ignore the most
   significant technology-regulating provision in the DMCA. Unless construed narrowly, the anti-device provisions
   may do as much harm to competition and innovation in the information technology industry as the
   circumvention ban may do to noninfringing academic uses. One would have thought that Congress and the
   Administration would be concerned about these impacts given that these are the very industries whose
   tremendous growth the Commerce Department has been trumpeting to the world. n219 The Librarian of
   Congress should, therefore, decide that his studies can consider the impact of anti-device rules on the ability
   of certain classes of users or works to make noninfringing uses of protected works. n220 The Librarian should
   also be entitled to make other observations about possible unintended side-effects of the anti-circumvention
   regulations that may be detrimental to the public interest. n221
 
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   n215. The principal value of the study provisions may well lie in deterring some publishers from egregious uses
   of technical protection systems that would interfere with fair uses..

   n216. Among the factors likely to limit the effectiveness of the study system devised in the DMCA is the fact
   that the Librarian of Congress is apparently supposed to initiate studies of the impact of anti-circumvention
   rules "upon the recommendation of the Register of Copyrights." Id. 1201(a)(1)(C). The Register, in turn, is
   supposed to consult with an official from the Department of Commerce before recommending a study. See id.
   It has been a long time since the Register of Copyrights or the Commerce Department have taken more than
   tepid steps to represent the interests of users of copyrighted works, particularly those from the educational
   and library sectors. Moreover, because none of the Librarian's findings last for more than a three year period,
   copyright industry lobbyists will have multiple opportunities to carve back or eliminate any user-friendly
   exceptions that the Librarian might have the temerity to recommend.

   n217. See supra note 136-140 and accompanying text for examples of legitimate circumvention activities
   unlikely to be captured by the scope of the intended studies by the Librarian.

   n218. See supra notes 24 and accompanying text. See also Benkler, supra note 24, at 416.

   n219. See supra notes 28-36 and accompanying text.

   n220. See 17 U.S.C.A. 1201 (a)(1)(C) (West Supp. 1999) (setting forth factors); see also Benkler, supra note
   24, at 420 ("Enforcement of the anti-device provision is unconstitutional unless and until the Librarian makes a
   determination that no non-infringing uses will be adversely affected by utilization of technological protection
   measures.").

   n221. See supra notes 136-140 and accompanying text for examples of other potential deleterious effects.
 
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   It is especially important to have periodic reviews of the whole of the anti-circumvention provisions because
   they sweep so broadly that they may come to be used widely to deal with circumventions far beyond the
   copyright industry concerns that Congress contemplated. The low level of  [*562]  proof needed to maintain
   an action for anti-circumvention violations, n222 along with the generous remedies the Act provides, n223 may
   prove to be a magnet for firms seeking to challenge acts of circumvention or devices that might, for example,
   concern trade secrecy or computer hacking matters. n224 As long as there is a plausible claim that some
   material being protected by the technical protection system has a modicum of creative content that would
   entitle it to copyright protection, n225 any act of circumvention or tool to aid the circumvention might be
   challenged under section 1201. Such uses of the statute could make copyright law into a general purpose
   misappropriation law regulating computer security matters. Moreover, as Part VI has shown, section 1201 is so
   ambiguous and broad that it may wreak considerable havoc in the information technology field, harming
   competition and innovation in this important sector. For these reasons, a broad regular review of the
   anti-circumvention rules should be undertaken.
 
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   n222. See supra notes 174-176, 193-195 and accompanying text.

   n223. See 17 U.S.C.A. 1203(b) (West Supp. 1999) (civil remedy provision).

   n224. This potential was recognized in the Congressional debate over the anti-circumvention rules. See 144
   Cong. Rec., H7096 (daily ed. Aug. 4, 1998) (remarks of Rep. Goodblatte). Although Rep. Goodblatte indicated
   that computer hacking statutes should be used to deal with computer hacking problems, there is no reason
   why someone injured by a computer hacker could not seek relief under 1201.

   n225. See 17 U.S.C. 102 (1994) (copyright protection subsists in all original works of authorship that have
   been fixed in a tangible medium of expression).
 
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   VIII. CONCLUSION
 
   The WIPO Copyright Treaty provides a "predictable, minimalist, consistent and simple legal environment" that
   should promote global commerce in electronic information products and services, in line with objectives and
   principles announced in the Clinton Administration's Framework for Global Electronic Commerce. n226 As the
   principal leader in the treaty-making effort that led to conclusion of this treaty, the Clinton Administration
   deserves credit for promoting this policy initiative that promises to substantially benefit the U.S. digital
   economy industries.
 
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   n226. See Framework, supra note 1, at 3.
 
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   In most respects, the legislation implementing the WIPO Copyright Treaty in U.S. law also conforms to
   Framework principles. n227 The anti-circumvention provisions of the DMCA, however, do not. They are
   unpredictable, overbroad, inconsistent, and complex. The many flaws in this  [*563]  legislation are likely to be
   harmful to innovation and competition in the digital economy sector, and harmful to the public's broader
   interests in being able to make fair and other noninfringing uses of copyrighted works. If these regulations are
   not as maximalist as those initially proposed to Congress, this is mainly due to Congress' heeding of concerns
   expressed by some of the leading firms of digital economy interests, rather than to the Administration's
   leadership.
 
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   n227. See supra notes 70-72 and accompanying text.
 
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   In the U.S. Congress, as well as in Geneva during the diplomatic conference leading up to adoption of the
   WIPO Copyright Treaty, proposed anti-circumvention regulations have been contentious. Among the concerns
   expressed in both venues were these: the potential effect of such rules on public access to information and
   on the ability to make noninfringing uses of copyrighted works, and their potential effect on competition and
   innovation in the market for hardware and software products whose uses might include the bypassing of some
   technical protection systems. n228 The diplomatic conference had the good sense to adopt only a general
   norm on circumvention, leaving nations free to implement this norm in their own way. n229 Thus, the flaws in
   the DMCA's anti-circumvention provisions do not derive from the treaty, but rather from the bad judgment of
   the Administration and the major copyright industry groups that urged adoption of overbroad rules in the
   DMCA.
 
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   n228. See supra notes 51, 87-89and accompanying text.

   n229. See supra note 51 and accompanying text.
 
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   This article has demonstrated that the DMCA's ban on the act of circumventing access controls should have
   included a general purpose "or other legitimate reasons" provision because the seven exceptions built into the
   statute, while they respond to the main concerns identified in the legislative debate, do not exhaust the
   legitimate reasons to bypass access controls. n230 The article has provided examples of other legitimate
   circumvention activities and has suggested that if Congress does not narrow the reach of this provision,
   courts likely will do so, even if it involves some stretching to do so.
 
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   n230. See supra notes 136-146 and accompanying text.
 
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   The article has also demonstrated that the anti-device provisions of the DMCA are substantially overbroad and
   need to be revised. The principal intent of Congress was to ban the development and deployment of "black
   boxes" that promote and enable piracy of copyrighted works. n231 However, the ban is far broader than this
   and threatens to bring about a flood of liti  [*564]  gation challenging a broad range of technologies, even
   where there is no proof that the technologies have or realistically would be widely used to enable piracy. n232
   The legislation is also unclear about a crucial question: whether it is lawful for people to develop or distribute
   technologies that will enable implementation of the exceptions and limitations on the circumvention ban built
   into the statute. n233 Did Congress intend to allow people to exercise these privileges, or did it intend to
   render these privileges meaningless because the technologies to enable the excepted activities have been
   made illegal? No clear answer to this question emerges from a careful study of the anti-circumvention
   provisions. While legislative clarification of this issue would be desirable, most likely the courts will have no
   choice but to address this question. Because of ambiguities in the statute, it is unclear how courts will resolve
   disputes in which such questions will be posed.
 
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   n231. See supra notes 93 and accompanying text.

   n232. See supra notes 194-195 and accompanying text.

   n233. See supra notes 150-151 and accompanying text.
 
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   Finally, this article urges that the anti-circumvention provisions be subject to periodic interagency review that
   would consider their impact as a whole. n234 The DMCA includes a provision authorizing the Librarian of
   Congress to study the impact of the act-of-circumvention provision and make a determination about whether
   this provision interferes with the ability of certain classes of users to make noninfringing uses of certain
   classes of copyrighted works. n235 This provision is too narrow in at least two respects. One is that it does
   not perceive the potential impact of the device bans on the ability of users to make noninfringing uses of
   copyrighted works. The Librarian of Congress can and should consider this as well. n236 A second is that the
   DMCA's study provision does not recognize other kinds of potential harm that the anti-circumvention provisions
   may do to competition and innovation in the information technology sector. n237 Because of the
   unprecedented character of the anti-circumvention provisions and their overbreadth, it would be highly
   desirable for a broader study to be undertaken of the impact of these regulations with an eye to
   recommending changes to remedy unintended harmful consequences they may be having.
 
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   n234. See supra notes 215-225 and accompanying text.

   n235. See 17 U.S.C.A. 1201(a)(1)(B).

   n236. See supra notes 220 and accompanying text.

   n237. See supra notes 217 and accompanying text.
 
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   Before concluding this article, it is perhaps worth noting that as yet relatively few copyrighted works are being
   distributed with technical pro  [*565]  tection systems built in. n238 Much research and development work is,
   however, underway to develop such systems. n239 Many copyright owners seem to hope or expect that such
   systems will be widely used for a broad range of work in the not-too-distant future and that these systems
   will stop piracy and other unauthorized and arguably unlawful uses of copyrighted works. n240
 
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   n238. See Computer Science and telecomms. Bd., National Academy of Sciences, Intellectual Property Rights
   and the Emerging Digital Economy (forthcoming 1999).

   n239. See Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be
   Unimportant on the Internet, 12 Berkeley Tech. L.J. 15, 38-45 (discussing various kinds of systems).

   n240. See Charles Clark, The Publisher in the Digital World, in Intellectual Property Rights And New
   Technologies: Proceedings of the KnowRight'95 Conference 85 (Klaus Braunstein & Peter Paul Sint eds., 1995).
   See also White Paper, supra note 15, at 177-90 (foreseeing wide deployment).
 
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   One factor that will significantly affect how widely technical protection systems will be deployed and how
   tightly they will restrict uses of copyrighted works is how consumers will react to them. n241 Copyright owners
   may feel far more secure if their works are technically protected so well that no unauthorized uses can ever
   be made of them. However, economists Carl Shapiro and Hal Varian argue that copyright owners must consider
   this:
 
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   n241. Carl Shapiro and Hal Varian assert that "trusted systems, cryptographic envelopes, and other copy
   protection schemes have their place but are unlikely to pay a significant role in mass-market information goods
   because of standardization problems and competitive pressures." Carl Shapiro & Hal Varian, Information Rules
   102 (1998).
 
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   The more liberal you make the terms under which customers can have access to your product, the more
   valuable it is to them. A product that can be shared with friends, loaned out and rented, repeatedly accessed,
   or sold in a resale market is obviously more valuable to a potential user than one that can be accessed only
   once, under controlled conditions, by only a single party. n242
 
   Moreover, people are very used to being able to make a wide range of uses of copyrighted works without
   seeking the copyright owner's permission. It is unclear how well they will react to a radical shift in the market
   for information products. Professor Benkler observes that "we have no idea how a world in which information
   goods are perfectly excludable - as technical protection measures promise to make them - will look. Because
    [*566]  of the non-rival nature of information, prevailing economic theory would suggest that we are as likely
   to lose as gain productivity from this technological change." n243 In addition, if consumers won't buy tightly
   restricted copies, copyright owners may end up worse off than before. n244
 
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   n242. Id. at 98.

   n243. Benkler, supra note 24 , at 424.

   n244. See Branko Geravac et al., Electronic Commerce and Intellectual Property - Protect Revenues, Not Bits,
   2 IMA Intell. Prop. Proc. 111 (1996).
 
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   Competition among information providers may also affect the successful deployment of technical protection
   systems. If one information provider tightly locks up his content, a competing provider may see a business
   opportunity in supplying a less tightly restricted copy to customers who might otherwise buy from the first
   provider. n245 A competitive alternative to tight technical controls may well be to adopt one of the several
   strategies that Shapiro and Varian discuss to show how content providers can take advantage of the
   opportunities presented by digital technologies, rather than being overwhelmed by the risks. n246 There are,
   they say, many other good business models out there waiting to be invented by creative content providers.
   n247
 
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   n245. This, in essence, is what happened when software developers, such as Lotus Development Corp. started
   distributing copy-protected versions of their programs. Firms with similar products who were willing to sell their
   products without copy-protection systems attracted enough customers that the leading firms eventually
   abandoned their technical protection schemes. This is, of course, more likely to occur where markets are
   competitive and where participants in the market are not acting jointly in deciding on technologies so that
   consumers will not have a competitive choice.

   n246. See Shapiro & Varian, supra note 241, ch. 4.

   n247. See id. at 84. Some of these business models may themselves be subject to intellectual property
   protection. See, e.g., Robert P. Merges, As Many as Six Impossible Patents Before Breakfast: Property Rights
   for Business Concepts, 14 Berkeley Tech. L.J. 577 (1999).
 
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   If content providers come to believe that a good business model is the best way to protect intellectual
   property from market-destructive appropriations, perhaps the current debate over the DMCA's
   anti-circumvention regulations will seem in time like a tempest in a teapot. However, in the meantime, the
   impact of this legislation should be closely watched because of its potential for substantial unintended
   detrimental consequences.