Page:Fair Circumvention.djvu/37

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directions.[1] What is worse, the statute’s definitional provisions are a muddle, creating uncertainty at the very point where the statute most needs (and promises) clarity. Consider first the legislative definition of “circumvention,” the key analytical concept around which both the anti-circumvention and anti-trafficking liability provisions ultimately revolve:

[T]o “circumvent a technological measure” means to descramble a scrambled

work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the

copyright owner. . . .[2]

At the most literal level, every work published in digital form is “scrambled” or “encrypted” solely by reason of being digital. Any work published in digital format consists of a series of ones and zeroes that must be deciphered to reveal the work’s original content[3]—whether that content represents the language of a poem, the color of an artist’s palette, the sound of a French horn, or the images of a motion picture. Playing an audio CD on one’s computer is an exercise in converting those ones and zeroes back into sound waves[4]—a process that, under any ordinary understanding of those words, might be thought to involve “descrambling” or “decryption” of the content. It appears to have been quite far from Congress’s intention to forbid ordinary uses of digital works not also protected by a separate DRM mechanism,[5] but the text as enacted leaves ample room for a textual formalist argument that the DMCA’s reach is much more expansive in actuality.[6] Something more than mere literalism, in other words, is necessary to prevent this definitional provision from vastly expanding the scope of the DMCA beyond the limits of Congress’s apparent intent.[7]

The other pertinent statutory definition—that of “effectively controls access”—is still worse, although the reasons why this is so become clear only after first attempting to construe the statute without reference to the definition. The DMCA forbids circumvention, or the trafficking in tools that enable circumvention, of technological measures that “effectively control access” to a copyrighted work.[8] Ordinary

  1. See infra notes 247-249 and accompanying text.
  2. 17 U.S.C. § 1201(a)(3)(A) (2006).
  3. See, e.g., Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1159 (9th Cir. 2007).
  4. See, e.g., Optical Disc Corp. v. Del Mar Avionics, 45 Fed. Appx. 887, 888-90 (Fed. Cir. 2002) (explaining CD authoring and playback); SightSound.Com Inc. v. N2K, Inc., 185 F. Supp. 2d 445, 458 (W.D. Pa. 2002) (same).
  5. See H.R. Rep. No. 105-551, pt. 1, at 39 (1998) (suggesting that Congress meant the statute to extend to technological protection measures “which require[ ] the use of a ‘key’ provided by a copyright owner to gain access to a work”).
  6. See Landau, supra note 20, at 300-01 (suggesting that traditional entertainment products such as “[m]usic, film, [and] books” may be analytically indistinguishable from “computer software” when published in digital form).
  7. See, e.g., United States v. Kirby, 74 U.S. (7 Wall.) 482, 486 (1869) (noting that statutes should be interpreted to avoid absurd results).
  8. 17 U.S.C. § 1201(a)(1)(A), (a)(2).