Page:Fair Circumvention.djvu/8

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[Vol. 74:1

deactivate, or impair a technological measure, without the authority of the copyright owner . . . .[1]

Congress next provided an explanation of the requirement that an access control measure “effectively control access” to a copyrighted work:

[A] technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.[2]

As will be seen below, these definitional provisions have caused their own share of difficulty for courts called upon to construe the DMCA.[3]

Congress contemplated three broad types of exemptions from the DMCA’s liability provisions. First, the statute includes a number of provisions excusing certain types of users from the statute’s liability provisions, including nonprofit libraries, archives, and educational institutions;[4] law enforcement and intelligence agents;[5] competing developers of interoperable computer software;[6] and encryption and security researchers.[7] Second, Congress provided a mechanism by which certain types of works would be exempted from the DMCA’s liability provisions by means of a triennial administrative rulemaking conducted by the Library of Congress upon the recommendation of the Register of Copyrights.[8] Finally, Congress sought to guide judicial constructions of

  1. 17 U.S.C. § 1201(a)(3)(A) (2006).
  2. Id. § 1201(a)(3)(B).
  3. See, e.g., infra notes 141-145 and accompanying text. On the textual infirmity of the DMCA’s definitional provisions, see generally infra notes 211-224 and accompanying text.
  4. See 17 U.S.C. § 1201(d) (2006). These users are exempt only from the statute’s anticircumvention provision, not its ban on trafficking in access or copy control devices. See id. § 1201(d)(4). They may circumvent the access controls “solely in order to make a good faith determination of whether to acquire a copy of that work” for noninfringing purposes. Id. § 1201(d)(1). Other limitations in the DMCA’s exception for nonprofit libraries, archives, and educational institutions generally parallel the language used elsewhere in the Copyright Act excusing libraries and archives from liability for copyright infringement under similar circumstances. Compare id. § 1201(d)(5) with id. § 108(a)(2) (2006).
  5. See id. § 1201(e).
  6. See id. § 1201(f).
  7. See id. § 1201(g), (j).
  8. See id. § 1201(a)(1)(B)-(D). The results of the Librarian’s most recent triennial rulemaking are are available in the Federal Register. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 71 Fed. Reg. 68,472, 68,479-80 (Nov. 27, 2006) [hereafter “2006 Final Rule”]. I have previously suggested that the Librarian of Congress’s triennial rulemaking proceedings have been comparatively narrow and technical in scope and that the rulemaking proceedings are unlikely to supply broad, robust immunity from DMCA liability for acts of circumvention undertaken for lawful purposes. See Armstrong, supra note 11, at 117 n.274; cf. also infra note 270 and accompanying text (offering an illustrative example of circumvention undertaken for noninfringing purposes that nevertheless falls outside the exemption of the 2006 Final Rule). Although the 2006 Final Rule does excuse certain classes of uses from DMCA liability, the Librarian has consistently rebuffed requests to promulgate broader rules exempting most or all circumventions undertaken for noninfringing purposes. See, e.g., 71 Fed. Reg. at 68,479 (proposed exemption #8); Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 68 Fed. Reg. 62,011, 62,014-15 (Oct. 31, 2003) (especially proposed exemptions #1, #2, and #4); Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64,556, 64,571-72 (Oct. 27, 2000) (rejecting proposed exemption for “‘fair use’ works”). In view of this history, some commentators have concluded that “the rulemaking process faces limitations that render it incapable of fully resolving the DMCA’s adverse effect on noninfringing uses.” Aaron K. Perzanowski, Evolving Standards and the Future of the DMCA Anticircumvention Rulemaking, 10 J. Internet L. 1, 1 (2007).