COPYRIGHT LAW 2004 Professor Fischer CLASS of April : TECHNOLOGICAL PROTECTION MEASURES

Wrap-Up Point: Reverse Engineering and Fair Use The courts have repeatedly held that reverse engineering can be a fair use. See e.g. Sega v. Accolade, Sony v. Connectix.

Technological Protections Some additional online resources can are at: sources/DMCA%20resource%20list.htm (not updated since 2003). sources/DMCA%20resource%20list.htm

Law: Protection for Technological Protections WIPO Copyright Treaty of 1996 (WCT) (Art. 11) see (46 members on 3/24/2004) at: entered into force 3/6/2002

WCT Art. 11 Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

DMCA Digital Millennium Copyright Act of 1998 (DMCA) is U.S implementing legislation for the WCT – previous attempts to introduce similar legislation prior to the WCT had failed Why did the copyright industries demand additional legal protection for digital works?

Technical Protection Measures The technical protection provisions in the Digital Millennium Act of 1998 responded to fears that digital format made copying easy and cheap and existing copyright law provided ineffective protections against piracy of copyrighted works. These provide special legal protections where a copyright owner uses technological self-help measures. What is technological self-help/technological protections for copyrighted works? What special protections does the DMCA now provided for technological protections?

DMCA s kinds of protection. The DMCA distinguishes between Access Control Measures (stronger) Copy Control Measures (weaker) Note – not technology-specific

Access Controls: DMCA section 1201(a)(1): “No person shall circumvent a technological protection measure that effectively controls access to a [copyrighted] work…” This prohibits access to a work that is encrypted or protected by similar technologies, not just access to a copy of the work. Thus this right broadens copyright owner’s rights. Does this result in overprotection? Does it destroy fair use?

DMCA 1201(a)(2): Anti- Trafficking Provisions – Access Prohibits manufacturing, importing, offering to public, provide, traffic in technology that is primarily designed to circumvent technological protection measures that effectively control access, has only limited commercially significant purposes except to circumvent technological protection measures, or is marketed by that person with knowledge for use in circumventing technological protections. How is this different from the access control provisions?

Anti-trafficking: Copy Controls – s. 1201(b)(1) Rather similar to access controls but bars manufacture or trafficking in technologies that are primarily designed or produced for the purpose of circumventing technological measures that effectively protects a right of the copyright owner [as opposed to access to the copyrighted work]

Penalties under DMCA What civil and criminal penalties are applicable to violations of the DMCA?

Penalties under DMCA S (civil) – injunctive relief, damages (actual or statutory ($200 to $2500 for act of circumvention, device, product etc..; triple damages for repeated violation), costs, attorney’s fees). Reduction possible for innocent violation, special innocent infringer provision for schools, archives, nonprofit libraries. S (criminal) – first offense: fine up to $500,000 and/or imprisonment up to 5 years; subsequent offense: fine up to $1 million and/or imprisonment up to 10 years –exempts schools, archives, nonprofit libraries

Does Fair Use Survive the DMCA?

S. 1201(c) (1) provides: “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” -also doesn’t affect vicarious or contributory liability or free speech rights

DMCA s (d)-(j) Section 1201 (d)-(j) provides exceptions for, e.g., certain reverse engineering, law enforcement activities, certain library uses, certain encryption research, privacy protection, protection of minors, security testing of computer systems Also – rulemaking provision under s. 1201(a)(1)(B)-(D).

First Triennial Inquiry Are there particular “classes of works” as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses if they are prohibited from circumventing such technological measures On October 27, 2000, Library of Congress/Copyright Office issued a final rule identifying 2 classes of works exempt from access provisions

Exemptions following first Copyright Office triennial inquiry 1. Compilations of lists of web sites blocked by filtering software applications 2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness In future there may be a need for more exemptions

Second Triennial Inquiry Announced Oct. 23, 2003 Exempts 4 categories of works

Exempted category 1 1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of .

Exempted category 2 (2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

Exempted category 3 (3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Exempted category 4 (4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

Universal City Studios v. Reimerdes CB p. 581 Plaintiffs: 8 major motion picture studios Defendants included (l) Eric Corley a.k.a. Emmanuel Goldstein, publisher of 2600: The Hacker Quarterly Ps alleged violations of DMCA – how did defendants respond?

Protesters at the federal trial (2000) “Electronic Civil Disobedience?”

REIMERDES Cause of action: DMCA 12(a)(2) – anti- trafficking provisions Defense: Actions don’t violate DMCA and DMCA violates the First Amendment/Copyright Clause by obstructing fair use and DMCA violates limits on duration in Copyright Clause