2002 UCLA J.L. & Tech. 4

Anti-Circumvention Rules and Fair Use
by Lev Ginsburg

On October 28, 1998, President Clinton signed the Digital Millennium Copyright Act (the “DMCA”), which includes several provisions in its Section 1201 that restrict one’s ability to lawfully circumvent a copyright holder’s copyright protection technologies.1 This paper argues that Section 1201 should not be construed so as to deny defendants the ability to raise the fair use defense.

The analysis begins by exploring and defining the rule set forth in Reimerdes2 , the first major action brought under those provisions of the DMCA. Reimerdes held, inter alia, that fair use defenses are not permitted in Section 1201 actions.

Part II discusses the implications of the Reimerdes decision and makes several suggestions as why Section 1201 should be construed to permit a defendant to raise a fair use defense to a Section 1201 action. Part II’s focus is my argument that Section 1201 violations are essentially allegations of contributory copyright infringement to which the fair use doctrine should apply. Moreover, Section 1201’s very language permits fair uses of copyrighted material that is encrypted with anti-circumvention technology.

Finally, Part III proposes several hypothetical situations that illustrate some of the tensions caused by Reimerdes’s interpretation of Section 1201 and support the assertions set forth in Part II.

PART I

Factual background

To protect their intellectual properties, the film studios that distribute films on digital versatile disks (“DVDs”) encrypt each DVD’s copyrighted content using a technology they call the “content scramble system” (“CSS”). CSS is “an encryption-based system that requires the use of appropriately configured hardware such as a DVD player or a computer DVD drive to decrypt, unscramble, and then play back, but not copy, motion pictures on DVDs.”3 CSS technology has been licensed to hundreds of manufacturers around the world.4

In Reimerdes, the eight major United States motion picture studios brought an action to enjoin defendant Eric Corley,5 a “leader of the computer hacker community,”6 from posting code7 for a computer program called “DeCSS” 8 on his website.9 DeCSS “enables users to break the CSS copy protection system and hence to view DVDs on unlicensed players and make digital copies of DVD movies.”10 Above and beyond their concerns about the unauthorized appropriation of their intellectual properties, the studios are particularly concerned by the fact that with respect to digital media such as DVDs, all copies, whether or not authorized, are of a quality identical to that of the “original” material from which the copy was made.11

The lower court granted plaintiffs’ motion for a preliminary injunction barring Corley from posting DeCSS on his website. Following the issuance of this injunction, Corley removed DeCSS from his website, but continued to provide “links” to other websites that offered DeCSS.12

Judge Kaplan’s opinion summed up the facts by writing that

[t]he net of all this is reasonably plain. DeCSS is a free, effective, and fast means of decrypting plaintiffs’ DVDs and copying them to computer hard drives . . . . [T]he availability of DeCSS on the Internet effectively has compromised plaintiffs’ system of copyright protection for DVDs . . . . It is analogous to the publication of a bank vault combination in a national newspaper. Even if no one uses the combination to open the vault, its mere publication has the effect of defeating the bank’s security system, forcing the bank to reprogram the lock.13

Statutory background

In 1997, the World Intellectual Property Organization (“WIPO”), adopted the WIPO Copyright Treaty (the “Treaty”), Article 11 of which provides, in relevant part, that contracting states “shall provide adequate legal protection and effective legal remedies against [1] the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights . . . and [2] restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”14 From the beginning, the Treaty established what the DMCA would later institutionalize as a two-tiered approach to these issues simultaneously addressing both actual circumvention and to other unauthorized acts in connection with such circumvention.

Though the Treaty did not require Congress to pass any law in particular,15 Congress soon began to consider these issues against the backdrop of the Treaty. A divide arose “between those who opposed anti-circumvention measures as inappropriate extensions of copyright and impediments to fair use and those who supported them as essential to proper protection of copyrighted materials in the digital age.”16 Congress enacted the DMCA in October, 1998, as the culmination of its process of considering the various implications of both perspectives.17

As Judge Kaplan’s Reimerdes opinion pointed out, the DMCA contains two principal anti-circumvention provisions. The first, Section 1201(a)(1)(A), states that “No person shall circumvent a technological measure18 that effectively controls access to a work19 protected under this title,”20 an act described by Congress as "the electronic equivalent of breaking into a locked room in order to obtain a copy of a book.”21

The focus of Reimerdes, however, was Section 1201(a)(2),22 which supplements Section 1201(a)(1)’s prohibition against actual circumvention by providing that

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 a technological measure that effectively controls access to a work protected under [the Copyright Act];
(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 [the Copyright Act]; 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 [the Copyright Act].23

Section 1201(c), however, has generated much confusion with respect to the applicability of fair use to Section 1201. In its entirety, Section 1201(c)(1) provides that “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”24 Further, Section 1201(c)(2) provides, in its entirety, that “Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof . . . . ”25

Reimerdes

Judge Kaplan found that CSS “effectively controls access” to Plaintiffs copyrighted works, even though CSS was eventually deciphered, under the theory that “a technological measure ‘effectively controls access’ to a copyrighted work if its function is to control access.”26 Additionally, Judge Kaplan found that, in the words of Section 1201(a)(2)(A), DeCSS was designed primarily to circumvent CSS because Corley admitted that “DeCSS was created solely for the purpose of decrypting CSS - that is all it does.”27 Judge Kaplan then held that “the foregoing is sufficient to establish a prima facie violation of Section 1201(a)(2)(B),”28 meaning that the court found that Plaintiffs had made a prima facie showing that DeCSS has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected by Section 1201.

Corley argued in his defense that his activities came within several exceptions contained in the DMCA and elsewhere in the Copyright Act, and that they also constitute fair use under Section 107 of the Copyright Act. Judge Kaplan briefly considered those arguments and found them all “entirely without merit.”29

a) Reverse engineering under Section 1201(f)

Section 1201(f)’s “Reverse Engineering” exception30 provides in substance that “one may circumvent or develop and employ technological means to circumvent, access control measures in order to achieve interoperability with another computer program provided that doing so does not infringe another's copyright . . . .”31 Additionally, Section 1201(f) provides that one may make information acquired through such efforts “available to others, if the person [in question] . . . provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement . . . .”32

Corley contended that DeCSS was necessary to achieve interoperability between computers running the Linux operating system and DVDs and that this exception therefore is satisfied. Judge Kaplan disagreed, and held that Section 1201(f)(3) permits information acquired through reverse engineering to be made available to others only by the person who acquired the information. Because Corley didn’t reverse engineer anything -- he simply lifted DeCSS from another site and posted it on his own -- he was not entitled to the exception’s protections.33

Additionally, Judge Kaplan also found that Corley would be no better off even if he had authored DeCSS because the right to make the information available extends only to dissemination that’s “solely for the purpose” of achieving “interoperability” as such term is defined in the DMCA. Judge Kaplan held that the exemption does not apply to Corley’s public dissemination of DeCSS. Clearly, Corley did not post DeCSS “solely” to achieve interoperability with Linux or anything else.34

b) Encryption research under Section 1201(g)

Next, Corley argued that his conduct was protected by Section 1201(g)’s encryption research exemption.35 Judge Kaplan pointed out that in determining whether one is engaged in good faith encryption research protected under this exemption, “the Court is instructed to consider factors including [1] whether the results of the putative encryption research are disseminated in a manner designed to advance the state of knowledge of encryption technology versus facilitation of copyright infringement, [2] whether the person in question is engaged in legitimate study of or work in encryption, and [3] whether the results of the research are communicated in a timely fashion to the copyright owner.”36

When applying those principles to the facts before him, Judge Kaplan determined that Corley had not engaged in any good faith encryption research because (1) he simply posted DeCSS for “all the world” to see; (2) he made no effort to provide the results of the DeCSS efforts to the copyright owners; and (3) because he made no good faith effort to obtain authorization from the copyright owners.37

c) Security testing

Corley also argued that his actions should have been considered exempt “security testing” under Section 1201(j). However, Judge Kaplan construed Section 1201(j) to protect only the “assessing [of] a computer, computer system, or computer network, solely for the purpose of good faith testing, investigating, or correcting a security flaw or vulnerability, with the authorization of the owner or operator of such computer system or computer network.”38 Because DeCSS had nothing to do with testing computers, computer systems, or computer networks, the security testing exemption “ha[d] no bearing in this case,”39 not to mention the fact that Corley had no authorization from anyone.

d) Fair use

Finally, Corley asserted that his conduct should be protected by the doctrine of fair use,40 which limits the rights of a copyright holder by permitting others to make limited use of portions of a copyrighted work, for appropriate purposes, without incurring copyright infringement liability.41 Judge Kaplan acknowledged that fair use “has been viewed by courts as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment.”42

The Copyright Act codifies fair use in 17 U.S.C. § 107. Traditional fair use activities include conduct that might otherwise constitute an infringement of a copyright holder’s exclusive Section 106 rights for purposes including “criticism, comment, news reporting, teaching…, scholarship, [and] research.”43

As established above, to copy any part of a DVD, one must circumvent CSS. Section 107’s fair use exemption provides that certain uses of copyrighted works -- uses that might otherwise be wrongful copyright infringement -- might be considered fair uses and therefore protected. Judge Kaplan, however, declined having to decide the applicability of fair use within the context of Section 1201, and simply noted that Corley was not sued for copyright infringement but for “offering and providing technology designed to circumvent technological measures that control access to copyrighted works and otherwise violating Section 1201(a)(2) of the [DMCA].”44 Moreover, Judge Kaplan held that fair use defenses do not apply to actions under the DMCA because “[i]f Congress had meant the fair use defense to apply to such actions, it would have said so.”45

Nonetheless, Judge Kaplan considered Corley’s fair use argument, that DeCSS, and his posting of it, was governed by Sony, in which the film studios sued the Sony Corporation on the theory that its manufacturing of home video cassette recorders provided consumers with a technology that contributed to the infringing home taping of copyrighted television broadcasts.46 Judge Kaplan rhetorically asked “whether the possibility of noninfringing fair use by someone who gains access to a protected copyrighted work through a circumvention technology distributed by [Corley] saves [Corley] from liability under Section 1201.”47

Judge Kaplan’s answer to his own question was that “[b]y prohibiting the provision of circumvention technology [in Section 1201], the DMCA fundamentally altered the landscape. A… piece of technology might have a substantial noninfringing use, and hence be immune from attack under Sony’s construction of the Copyright Act -- but nonetheless still be subject to suppression under Section 1201. Indeed, Congress explicitly noted that Section 1201 does not incorporate Sony.”48

The Second Circuit affirmed Judge Kaplan’s opinion in its entirety. Circuit Judge Newman agreed with Judge Kaplan when he wrote that the fair use doctrine need not enter into this context because Corley did not “claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits [him] from making such fair use. [He is] barred from trafficking in a decryption code that enables authorized access to copyrighted materials.”49

PART II

Discussion

There is ample reason to disagree with both Judge Kaplan and Circuit Judge Newman. A violation of Section 1201 is, for all practical purposes, an action alleging contributory copyright infringement. In contributory copyright infringement actions, defendants are permitted to argue that because the technology defendants provided to others is capable of substantial noninfringing uses, defendants should not be held liable for the direct copyright infringement of others.50 Defendants like Corley should be permitted to assert a fair use defense in order to assert the substantial noninfringing uses of any DeCSS-like technology he is accused of using in violation of Section 1201.51

Section 1201(c)(1) clearly provides that “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”52 The language is plain and unambiguous. Neither Judge Kaplan nor Circuit Judge Newman ever address Section 1201(c)(1), even though the Second Circuit has held that courts must give effect to all provisions of a statute, and “are not at liberty to construe any statute as to deny effect to any part of its language.”53

It’s erroneous for the courts to divorce Section 1201 from copyright infringement -- and thereby ignore DeCSS’s substantial noninfringing uses54 -- by merely pointing out that Corley was not sued for copyright infringement but for “offering and providing technology designed to circumvent technological measures that control access to copyrighted works…”55 Section 1201(c)(1)’s clear terms presume that Section 1201’s anti-circumvention provisions are inextricably linked with the copyright infringement context. For example, the title to Section 1201 reads, “Circumvention of copyright protection systems.”56 If we accept this link between Section 1201 and copyright infringement, as we should, it becomes difficult to explain why fair uses of digitally-encrypted copyrighted content are not permitted under Section 1201, while the same uses of unencrypted analog counterparts would be perfectly acceptable under the Copyright Act.

Put another way, if a Plaintiff claims that a defendant provided technology to circumvent the copyright protection system in violation of Section 1201, the Plaintiff has actually made a claim of contributory copyright infringement against the defendant. By providing the technology to others in violation of Section 1201(b), possibly after engaging in his own Section 1201(a) violation, the Defendant enabled others to violate the Plaintiff’s rights under other provisions of the Copyright Act. Therefore, assuming arguendo that Corley did offer and provide this technology to others, the Plaintiffs’ objection would be that his doing so enabled others to directly infringe the Plaintiffs’ copyrights under a theory of indirect liability reminiscent of that raised in Sony.57

Copyright protection systems -- explicitly the subject of Section 1201’s protective provisions -- exist to prevent copyright infringement by making it more challenging for the average consumer to access a copyright holder’s encrypted copyrighted materials. Accordingly, an alleged violation of Section 1201 -- because it potentially renders the copyrighted materials protected by such anti-circumvention technology more vulnerable to direct infringement -- is therefore itself an allegation of indirect copyright infringement.58

In that sense, Section 1201 affords copyright holders an additional exclusive right;59 namely, the right to prevent circumvention of copyright protection systems put in place to protect their copyrighted works (hereafter referred to as the “Protective Right”). Circumvention of copyright protection systems, and all trafficking activities associated with such circumvention, are and should be judicially regarded simply as new varieties of copyright infringement because such circumvention infringes on the copyright holder’s exclusive Protective Right under Section 1201. DeCSS-like technologies are analogous to VCRs in that they may enable fair uses of copyrighted materials that might otherwise be regarded as directly infringing a copyright holder’s exclusive right(s).60

The Circuit court avoided having to apply the fair use factors and precedent to Corley’s conduct and simply affirmed Judge Kaplan’s ruling, holding that “such matters are far beyond the scope of this lawsuit” because Corley does not “claim to be making fair use of any copyrighted materials.”61

The Circuit court’s comment that Corley does not “claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits [him] from making such fair use” doesn’t address the fact that Corley’s fair use defense arose while facing the unique circumstances of what amounted to a traditional indirect copyright infringement action cloaked within a Section 1201 action. Before the enactment of Section 1201, the Plaintiffs would have been forced to bring indirect liability actions to enjoin Corley’s posting of DeCSS; actions that might have collapsed under the weight of the Sony precedent.62

Moreover, the Reimerdes ruling is particularly striking in light of Section 1201(c)(2)’s “Other rights, etc., not affected” clause, providing that, “Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.”63 Construing Section 1201 in a manner precluding a fair use defense impermissibly “enlarge[s]… contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof” because fair use is permitted as a defense to contributory liability actions under traditional copyright principles.64 Just because Section 1201 created this new Protective Right does not mean that the Protective Right can violate the express language of Section 1201(c)(2) drafted specifically to constrain Section 1201’s potential “enlarge[ment] of contributory liability.” Therefore, Section 1201 does not inevitably enlarge contributory liability, or even go beyond it by creating a new form of liability.

A plaintiff’s election to overlay a copyright infringement action with a Section 1201 claim should not preclude or eviscerate an otherwise potentially exculpatory fair use defense. To allow the Reimerdes rulings to stand for such proposition would significantly “enlarge” indirect liability -- as defendants will be deprived of the fair use defense in the contributory anti-circumvention context -- in direct contravention of Section 1201(c)(2).65

To deny Corley, and future defendants in this context, the fair use defense directly contravenes the intent and language of Section 1201(c) as well as the longstanding notion that “some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[to] promote the Progress of Science and useful Arts….”66 Under the Reimerdes interpretation of Section 1201, however, copyright holders will be able to simply encrypt all of the works they distribute and thereby make it impossible for consumers to make many otherwise fair uses of any underlying copyrighted works without receiving the express authority of copyright holders, thereby eviscerating the essence of making fair uses.67

Permitting the fair use defense within the anti-circumvention context still provides copyright holders a remedy for the dissemination of those technologies, such as DeCSS, which they can establish lack substantial noninfringing uses. Doing so would merely require, in accordance with today’s construction of the fair use doctrine, that Plaintiffs’ burden of proof include a showing that the DeCSS-like technology in question is incapable of substantial noninfringing uses before a court imposes liability for trafficking in it.68

The first step in the author’s test to resolve these tension would be to ask whether or not the circumvention technology facilitates some substantial noninfringing uses. The application of this test will not eviscerate Section 1201’s ban on all such conduct. For example, Judge Kaplan never decided whether or not DeCSS facilitates substantial noninfringing uses. If he had done so, he probably would have found that it does not. On the other hand, one could argue that a DeCSS-like technology might facilitate substantial noninfringing uses if, for example, it allowed the removal of only a few seconds of the underlying copyrighted work, or if it permitted the lawful recording of its audio portion under the Audio Home Recording Act.69 Reimerdes leaves the question unresolved.

Additionally, a redrafted Section 1201 should also ask whether or not the circumvention itself falls into the category of fair use (i.e., (1) whether or not the circumvention is for a favored purpose, (2) whether it’s noncommercial, and (3) what is its effect on the market). Because Section 1201 is designed to protect copyrighted expression, circumvention of technologies that encrypt protected expression may be “fair use” under the circumstances described in Part III below. Under this analysis, Section 1201 can still restrict circumvention and the distribution of circumvention technologies that neither facilitate substantial noninfringing uses or that are not themselves fair uses.

PART III

Hypotheticals

a) Roving

Consider the case of Eugene, a United States citizen, who purchased a lawfully-made DVD from an authorized retailer while travelling in Spain. Because of the DVD’s European regional encoding, the DVD will not play when placed in Eugene’s DVD player in Los Angeles that’s been factory-encoded for the United States region. At this point, Eugene can either use the DVD only when he’s able to play it on a properly-encoded DVD player, perhaps only when in Spain, or, if he’s sufficiently skilled, he can write or use a DeCSS-like technology to circumvent the regional encoding and enable him to view the DVD for which he already paid in his own home.

If Eugene chooses to do the latter, under Section 1201’s Reimerdes interpretation, he will almost certainly violate Section 1201. However, this specific sort of private use activity “does no harm to the copyright owner of the DVD and is not the type of piracy-enabling activity that the DMCA’s anti-circumvention provisions were intended to reach.”70 Further, application of the fair use defense under Section 107 would likely protect Eugene’s conduct. Using a DeCSS-like technology to play a regionally-encoded DVD player in the privacy of one’s home in another region does not infringe on any of the copyright holder’s traditional Section 106 exclusive rights.71

The drafters of Section 1201 may have considered scenarios like this when they specifically included Section 1201(c)(1), which provided that “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” Otherwise, copyright holders would be allowed to simply employ a CSS-like copyright protection mechanism in connection with their works to deny defendants the ability to raise a fair use defense in connection with activities that courts and Congress have already determined may be fair uses, especially insofar as they’re related to “teaching…, scholarship, [and] research,” which are explicitly referred to in Section 107. The fair use factors that consider (1) the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” as well as (2) the “effect of the use upon the potential market for or value of the copyrighted work” seem to work in favor of many uses to which DeCSS can enable users to put the Plaintiffs’ copyrighted works, some of which are discussed in detail in this Part. For example, the “purpose and character” of many such uses is often noncommercial and nonprofit, and often has little if any effect upon the potential market for or value of the copyrighted work.

b) Reverse-engineering and cryptographic research

The anti-circumvention rules should be modified and/or interpreted so as to permit research that’s currently unprotected by Section 1201’s scientific or technical research exemptions.72

Consider the case of the computing hobbyist who is writing an article for a publication evaluating and comparing several competing CSS-like encryption technologies that protect copyrighted data on DVDs. The DMCA’s reverse engineering exception applies only if the sole purpose of the reverse engineering is to achieve program interoperability and if reverse engineering is necessary to do so.73 The hobbyist’s attempts to diagram or understand the encoded encryption mechanism, even if conducted in the privacy of his own laboratory, would not qualify under this exemption and would probably violate Section 1201.74

Further, the hobbyist could not share any information gained from such activities with others, except for the purpose of enabling program interoperability.75 Accordingly, situations like the one described above would never qualify under this exception because a DVD’s copyrighted material is not a program, it is data, and data-to-program interoperability76 is not covered by the exemption.77

Likewise, the cryptographic research78 exemption, for example, may apply only if the defendant is employed or has been specifically trained as a cryptographer.79 Cryptography, however, is a field unlike molecular biology or even formal computer science; its practitioners are often occasional hobbyists,80 or what others would describe as “amateurs.”81

Further, the cryptographic exemption requires a person engaged in research82 to prove the necessity of such research. However, as suggested above, a person might just be trying to enhance his or her understanding of how an existing technology works, with, without, or perhaps before having an eye towards advancing the field.

Section 1201 could be redrafted to take these hypotheticals into account and provide a way for students and those entering the field to lawfully conduct their own education and promote future contributions to the field by learning through experimentation. For example, Section 1201 could explicitly exempt uses that it might otherwise ban using language similar to Section 110’s teaching exemption.83 To determine what object code is doing, for example, some computer programmers use programming tools (sometimes called disassemblers or decompilers), to translate object code back into source code that can readily be studied by beginners.84 None of this is clearly protected conduct under Section 1201, and it should be.85

Consider another hypothetical situation: a copyright holder authorizes the creation of a very well-crafted algorithm to protect and restrict access to his copyrighted materials. This algorithm would then itself be locked away from use or even understanding by others under Section 1201 to the extent that learning about the algorithm requires circumventing any technology used to encrypt it. If successful, all of the beneficial ideas of this breakthrough method or procedure would inure only to the copyright holder.86 Other computer programmers would be barred from even attempting to learn how this authentication or encryption procedure works or how/if it can be adapted to another purpose. This is likely not the intent of Section 1201.87

Cryptographers and computer programmers tend to engage in their trade during and after a process of exchanging ideas in computer code with one another. Section 1201’s encryption research exemption strictly limits the ability of these people from communicating with one another with respect to all of the research situations I’ve outlined.88 All of this behavior would likely be prohibited by the anti-circumvention rules as they’re set forth in Section 1201 and interpreted in Reimerdes.89 Further, even receipt of authority from the copyright owner of a particular work protected by the encryption technology that is the subject of analysis might still constitute “offer[ing] to the public [or] provid[ing]” a “technology” for circumventing access or copy controls on a different work encrypted by the same method because the lessons learned from one may be applied to the other.90

Another potential conflict between the anti-circumvention rules and fair use is illustrated by the following hypothetical: a university professor lawfully purchases a digitized -- but encrypted -- multi-volume index to a very large body of scholarly work. The index is searchable using whatever protocols the copyright holder has established, but the search characteristics are limited in function.91

If the professor wants to employ his own search methodologies, either by writing or using code to bypass the in-built search function,92 the professor risks violating Section 1201 because the index data has been encrypted using a CSS-like copyright protection technology. The uses to which the professor would have put the encrypted data would probably have been fair uses under pre-Section 1201 copyright principles. Still, the professor would likely be prevented from accessing this information in this way under Section 1201(a)(1)(A), which states the blanket prohibition that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

One could argue that a copyright owner should be permitted to determine how a body of data that such owner has expressively arranged should be searched. However, the stronger argument is that once consumers have purchased a body of information, devising a new way to search that information, especially when searched for private purposes only, should be protected because consumers would be permitted to do just this by cutting the body of information up into small pieces and organizing them alphabetically or in some other order -- why make them engage in this sort of waste?

Just as there is nothing in a copyright that requires a person to a read a book from front to back, there should be nothing in a copyright that requires him or her to search through that book using only its table of contents. If one decides to wear special eyeglasses designed to permit reading only the word “fancy” as it appears in the book, especially where one is researching the uses of the word “fancy” in literature and the book is not otherwise equipped with a mechanism to provide her with this data automatically, there should be no copyright objection to her devising a program aimed at this end. The data, the facts, are all in the lawfully-purchased copy; should we permit the copyright holder to restrict access to these facts as he determines? Circumvention that helps facilitate uses of facts should be at least as protected as circumvention that facilitates fair uses of expression.93

Yet another hypothetical conflict is illustrated by the beginning computer programmer who has been assigned by his professor to devise an encryption algorithm to protect the data on the programmer’s personal computer. The programmer’s computer, however, contains material copyrighted by others, including, for example, songs lawfully-transferred from one of the programmer’s CDs, and the text of various commercially-available news articles.

One day while in the midst of composing a particularly tricky section of code, the programmer’s encryption algorithm corrupts commercial encryption software associated with some of the copyrighted material lawfully resident on the programmer’s computer. Apparently, both of the encryption technologies access a third piece of code to run properly with the programmer’s operating system. Immediately, the programmer’s computer locks up and will not permit him to access his hard drive. The student takes his computer to his professor who might be able to help the student separate the warring algorithms, permitting him to access the materials on his hard drive. The professor quickly isolates the conflict-causing code sections, breaks the algorithm that caused the conflict, and hands the computer back to the student.

There’s nothing in Section 1201 that exempts the professor’s conduct from constituting a violation of Section 1201(a)(1)(A). The professor, if successful, would have circumvented a technological measure that effectively controls access to a work protected under the Copyright Act (the songs, for example). Under traditional copyright principles, however, this would be a fair use. For example, the purpose or character of the circumvention was for nonprofit educational activities, a favored use, and there’s also likely to be no effect on the market for those materials under these facts. To the extent that the CSS-like technologies were circumvented, such circumvention was not conducted to use any protected copyrighted materials at all. The other two fair use factors are therefore inapplicable. Finally, under Sony a copyright holder would be permitted to restrain the sale of professor’s potentially infringement-enabling technology -- currently forbidden under Section 1201(b) -- only when it could be proved incapable of substantial noninfringing uses.94

c) Expression and education

Though a discussion here of the possible collision of the First Amendment and the Reimerdes facts could potentially open a can of worms, the Reimerdes decisions and their courts’ construction of Section 1201 do pose significant practical obstacles to the freedom of the press.

Imagine that in the fall of 1998, an Enron file-clerk gets wind of some accounting irregularities that suggest that high-level Enron executives have possibly misrepresented the corporation’s revenues, assets, and liabilities. The file-clerk brings this to the attention of a senior vice-president who tells her to keep it quiet or she’ll lose her job. The public disclosure of this information to the media, however, could potentially prevent the loss of millions of dollars in pension packages, and timely attention to this matter may help protect the jobs of many lower-level Enron employees, including that of the potential whistle-blower, by drawing government attention to what could become a disaster long before it actually is one.

The file-clerk comes across a computer disk that she knows contains this data in support of her suspicions, but the data is protected by CSS-like software enabling only authorized Enron terminals to access the data.

Presuming the legitimate copyrightability of the data by Enron, a publicly-held company, the file-clerk, or a journalist to whom the file-clerk gives the disk, or any of their agents, may need to decrypt the protection software to view the underlying information. Under Reimerdes, this conduct, clearly in the public interest, would likely violate Section 1201 and may subject the whistle-blower to a successful Section 1201 action if she’s barred from asserting the fair use defense. Though the file-clerk would be subject to all sorts of criminal and civil liabilities for theft of corporate property, trade secrets, embezzlement, and/or conversion, that is no excuse on its own for adding copyright liability to the book that the courts are going to throw at her. Electronic data such as that encrypted on the disk is unlike ordinary or traditional property; its use will not be one that infringes on the copyright holder’s exclusive rights to remuneration from his protected expression.

By simply electing to protect its sensitive data with a copyright protection system like CSS, companies like Enron could further deter whistle-blowing and diminish corporate accountability in derogation of the rights and interests of their employees and shareholders. The Enron employee could find herself with no possible way to save her own job without being subjecting to a Section 1201 action (in addition to the legion of other actions to which she’d reasonably be subject).

In another context, a professor might need to access a film only available on DVD for use in a compiled presentation of several clips to illustrate a lesson during a class. Section 1201 provides no protection for this sort of harmless educational use.95 For pedagogical efficiency purposes, professors will often make “mix” tapes of various copyrighted media to insert and play from start to finish so as to minimize time spent changing between source materials. As suggested above in the other hypothetical involving a professor, this too is a favored use by virtue of its connection with in-class education.96 Consider also the above-mentioned hypothetical involving a content provider who placed a copyrighted work in an electronic database. Section 1201 would render it unlawful to circumvent technology controlling access to that database even if the database contains mostly public domain works.97

In the future, diminished protection for this sort of conduct might come at a great cost for students of film and television who might be limited to watching clips from older analog sources that don’t employ the CSS-like technologies that prevent them from being used or compiled by instructors. Moreover, Section 1201 will serve to make professors go through the motions of switching between DVDs that detracts from the learning process and increases the length of time between segments to be compared. When films begin to be released only on DVD, much like many recordings are released only on CD today, these tensions may become exacerbated in many instructional contexts. This is especially true if Section 1201 continues to be interpreted so as to enable copyright holders to effectively to control access to content as well as the uses that fall within their exclusive Section 106 rights.

More generally, the sorts of encryption technologies used by copyright holders might not be truly “impossible,” but as the hypothetical situation above suggests, copyright holders might be able to deter such uses by making them so impractical.

Conclusion

As intellectual property doctrines such as trademark and copyright increasingly begin to collide with the legal traditions associated with fair use and the First Amendment, lawyers and judges will be forced to define the extent to which these doctrines and legal traditions can coexist and provide adequate protection to both potential plaintiffs and defendants. Perhaps this collision will result in an ebb and flow of advantage over a number of years, with Reimerdes-like decisions vesting precedential authority in copyright holders only until new technologies and/or Supreme Court reviews render such decisions either of limited value or altogether invalid.

The natural tendency for information is to escape from that which constrains it because those who use information rarely do so for themselves alone. Before personal computers, photocopying threatened copyright, and before photocopying the spoken word permitted those who had not purchased a book to learn of and from its contents, its ideas, without the permission of the copyright owner. Once information has been set forth in a fixed medium, the tendency is for it to be shared with others, whether by spoken word, a photocopy-like reproduction, or digital transmission. Frameworks established to constrain this tendency often collide with the essential purpose of memorializing that information in the first place: communication. On the other hand, there is meaningful value in maintaining incentives for producers to create new works. Section 1201’s interpretation in Reimerdes strikes this balance too strongly in favor of copyright holders, but this imbalance can be remedied by the proposals made herein.

The challenge for the developers of emerging technologies will be to accommodate the interests of content-producers in protecting their investments with the natural tendency of information to escape from that which may constrain it in furtherance of communication. Of course, this tendency needs to be kept in check so as to protect the equally natural desire to protect the value of created works. In writing this paper, for example, this author came across two technologies that have found a way to accomplish at least some of what Section 1201 may have been seeking to avoid without risking its violation.98

Fair use may remain the doctrine by which the average person’s right to make fair use of another’s copyrighted intellectual property retains at least a threshold level of protection. Alternatively, courts and Congress may decide that fair use should become a thing of the past, relevant only in those halcyon days before the truly digital age that brought about its demise. Perhaps our future will be one in which few uses of another’s copyrighted or otherwise-protected intellectually property will be “fair,” and we may all be the better for it. Until then, however, copyright holders should not be permitted to use one protective copyright doctrine to eviscerate the protections long-afforded by another.

Footnotes