Page:Fair Circumvention.djvu/7

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2008]
7
FAIR CIRCUMVENTION
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.[1]

The other provision forbids making or trafficking in devices that circumvent copy control technologies:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.[2]

As drafted, there is a certain lack of parallelism in the statute: the provision forbidding trafficking in copy control circumvention devices is not matched, as the access control trafficking provision is, by a separate clause outlawing the use of such a device, although this is perhaps explainable by the fact that circumventing a copy control measure may be separately punishable as copyright infringement.[3]

The DMCA provided definitions of two of the key phrases employed in the statute’s liability provisions. First, Congress defined what it meant by “circumvention”:

[T]o “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove,

  1. Id. § 1201(a)(2) (emphasis added).
  2. Id. § 1201(b)(1) (emphasis added).
  3. See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1195 (Fed. Cir. 2004) (quoting S. Rep. No. 105-90, at 12 (1998)). This is not, of course, to say that copyright liability necessarily follows any time a copy control mechanism is circumvented; the courts would be left in each such case to determine whether the circumvention was excused under other provisions of copyright law, such as fair use. See, e.g., Michael Landau, Has the Digital Millennium Copyright Act Really Created a New Exclusive Right of Access?: Attempting to Reach a Balance Between Users’ and Content Providers’ Rights, 49 J. Copyright Soc’y U.S.A. 277, 288 & nn.52-53 (2001).