Center for Advanced Study & Research on Intellectual Property

 

CASRIP Newsletter - Fall/Winter 2009, Volume 16, Issue 1

Fair Use in the Digital Age: Theoretically Sound But Practically Impossible?

By David Ray *

Table of Contents

Introduction 3
Part I: The DMCA 3





Part II: DRM Technology 10



Part III: Fair Use 13




Part IV: An International Perspective 20






Conclusion 35

Introduction

Explored here is the intersection of two related but divergent concepts of intellectual property: The Digital Millennium Copyright Act (“DMCA”)1 , which arms copyright holders with new causes of action to defend from infringement, and the principle of Fair Use.2 A review of the applicable statutory provisions and relevant case-law reveals that while Fair Use remains viable on a superficial level, the statutory framework leaves a Fair Use right of little practical significance. Finally, in considering to what extent the concepts inherent in the DCMA and the doctrine of Fair Use have been harmonized internationally, we explore analogous statutory schemes in the European Union and New Zealand.

Part I: The DMCA

For the purposes of this paper, I will focus only on §§ 1201 and 1202 of the DMCA, which create new causes of action in relation to digitally distributed content. These sections, in concert, create liability for the following five acts:

  • Circumvention of access controls [§ 1201(a)1(A)]
  • Trafficking in devices or technology that enable circumvention of access controls [§ 1201(a)(2)]
  • Trafficking in devices or technology that enable circumvention of use controls [§ 1201(b)]
  • Falsification of copyright management information [§ 1202(a)]
  • Removal or alteration of copyright management information [§ 1202(b)]

While they are codified within the Copyright Act, Congressional authority for these provisions actually arises under the Commerce Clause, instead of the Promotion Clause, which is the underpinning of Copyright and Patent Law. This raises the question as to the applicability of traditional copyright law concepts, such as Fair Use, to these purpose-built clauses designed for the explicit goal of protecting copyrighted materials online.

Section 1201(a): Access Controls

Section 1201 of the DMCA enacts three separate anticircumvention bans. The basic ban prohibits circumventing a technological protection measure (“TPM”) to gain unauthorized access to copyrighted works. The other two bans are on trafficking in tools that effectuate the circumvention of a TPM that controls access to works or limits certain uses, such as copying or printing. Conspicuously absent is a prohibition on circumventing the use limitations of a TPM; only the trafficking in tools is covered.

Section 1201(a) prohibits acts of circumvention, both directly and indirectly through the trafficking in circumvention tools or technology. Section 1201(a)(3)(A) defines “to circumvent” as “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” [emphasis added].3 The practical extent of this authority will be discussed in greater detail later in this paper. In order for this statute to be triggered, a work must first be encrypted or protected by a technological measure. In cases of direct circumvention, the act of circumvention itself is punishable.

In addition, indirect infringement may be found under § 1201(a)(2) where a party manufactures, imports, offers to the public, or provides a device or technology that is 1) primarily designed to circumvent access controls; 2) has limited commercially significant purpose other than to circumvent those access controls, or; 3) is marketed to bypass such controls.4 This definition is much broader than the indirect liability test for technology producers articulated in Sony and upheld in Grokster, which asks only if the technology in question is “capable of substantial non-infringing use.”5 Under the DMCA, indirect liability is much easier to assign, and many technologies that would survive the Sony test would incur liability here. The third factor, relating to the marketing of the product and claims of inducement, however, mirrors the finding in Grokster.

Section 1201(b): Use Controls

Section 1201(b) applies virtually the same anti-trafficking provisions as § 1201(a), except here they are aimed toward use controls. The act categorizes a technical protection as a use control if the “technological measure ‘effectively protects a right of a copyright owner under this title’ if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.”6 This moves beyond access, and looks to TPM’s that prevent a user from copying, printing, or making other uses of a protected work.

Copyright owners may use TPM’s to differentiate their offerings, or to limit distribution. For example, a publisher of e-books may be concerned that customers may simply print copies of the book, or particularly relevant sections, and share them with others.7 For example, this enables virtual rentals of content, which expire after a certain number of uses, a particular time period, or may be tied to the maintained existence of a subscription. With increased bandwidth to the home, this section makes viable the ability to provide online movie rentals delivered directly to your computer or media center, bypassing a trip to the video store. Such models also bypass the need for physical media, packaging, and distribution.8 Even DVD-by-mail rental revolutionary Netflix has begun making video rentals available online through their website.9

The primary difference between § 1201(a) and § 1201(b) is the absence of a ban on the act of circumvention of use controls. This omission was purposeful, as a negotiated effort to preserve fair use under the DMCA. However, in this case, it is not an affirmative defense; rather it creates a particular category of act that is theoretically a non-infringing use. The legislative history explains the decision to permit circumvention of rights controls this way: “[A]n individual would not be able to circumvent in order to gain unauthorized access to a work, but would be able to do so in order to make fair use of a work that he or she has acquired lawfully.”10

The primary criticism of this dichotomy is that the trafficking prohibitions undermine the practical significance of the statutory concession on the circumvention of rights controls. It is commonly noted that the restrictions on trafficking will deprive most users of the technological tools necessary to accomplish any circumvention--a result that was surely obvious to the drafters. In effect, this creates a right without a remedy, which is effectively no right at all.

While mechanically true, I would further argue that this scenario is more analogous to drug possession laws in many states, which have decriminalized the possession of small amounts of drugs like marijuana. This exception is made for personal use, but the sale of these drugs is still a criminal act. Nonetheless, drugs continue to be readily available. As do tools designed to bypass TPMs. Like illegal drugs, they trade on the black market, easily obtained through peer-to-peer networks, usenet newsgroups, and internet relay chat rooms. The true roadblock preventing the exercise of this fair use right is the nature of TPMs as a technology coupled with the judicial interpretations of the technical definitions of access and rights controls in the DMCA.

Section 1202: Copyright Management Information

Section 1202 addresses the falsification and removal of copyright management information (“CMI”). CMI includes identifying information embedded or encoded into a work, including the following:

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.
(4) With the exception of public performances of works by radio and television broadcast stations, the name of, and other identifying information about, a performer whose performance is fixed in a work other than an audiovisual work.
(5) With the exception of public performances of works by radio and television broadcast stations, in the case of an audiovisual work, the name of, and other identifying information about, a writer, performer, or director who is credited in the audiovisual work.
(6) Terms and conditions for use of the work.
(7) Identifying numbers or symbols referring to such information or links to such information.
(8) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.11

A key component of this section is that removal or falsification must be done knowingly in order to incur liability; inadvertent removal of CMI is not actionable. Exceptions exist for law enforcement12 and for analog broadcasters if it is not technologically feasible or unreasonably burdensome to comply with the CMI requirements.13 For digital broadcasters, CMI must be included unless the format does not conform to voluntary standards established by digital broadcasters.14

Digital Rights Management (“DRM”) intersects with CMI in two ways. First, as discussed later in this paper, digital watermarking can be used to encode CMI information into digital files or digital broadcasts. Second, CMI can be embedded into a digital file’s metadata, which is part of the file format for MP3 and advanced audio coding files.15 In fact, most digital files, from word processing to PDF files contain this kind of metadata information.16

Rulemaking Provisions

The DMCA has a safety valve in the form of regular rulemaking sessions that have provided a number of specific exceptions to DMCA liability. For the purposes of this paper, I will focus on the fair use provision of § 1201(b). Fair use is case and matter specific, while the rulemaking is a fine-tuning mechanism that clarifies the act; although they overlap, they serve somewhat different purposes. The current rulemaking exempts:

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.
2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. 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.
3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.
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 either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
6. Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures that control access to lawfully purchased works and create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.17

Unlike Fair Use, which is determined on a case-by-case basis, these are specific blanket exceptions for very specific acts.

Review of Judicial Treatment of §§ 1201 and 1202

A question raised by § 1201 of the act is the issue of “authorization.” In 321 Studios v. MGM, 321 Studios produced an application that was able to copy DVDs encoded with Cascading Style Sheets (“CSS”) technology using a technically valid but unlicensed key. In more basic terms, the digital key used to unlock the CSS technology originated from 321 Studios; however, it was meant for use by another company. The key was valid, but the user was not authorized to use that key. 321 Studios claimed that its software did not avoid, bypass, remove, deactivate, or otherwise impair a technological measure, but that it simply used the authorized key to unlock the encryption. The court found, however, that “321’s software does use the authorized key to access the DVD, it does not have authority to use this key, as licensed DVD players do, and it therefore avoids and bypasses [the] CSS [access control].”18

This result is one of the most criticized elements of the 321 Studios decision, as it establishes precedent for courts to use license terms to justify a DMCA claim. However, a computer program is not an individual, and does not have the ability to enter into a license agreement. In contrast, several cases involving the unauthorized use of another person’s password were found not to have triggered § 1201.19 As such, the role authorization plays in circumvention is unsettled.

An initial concern with the DMCA anticircumvention provisions was that these new causes of action might expand the scope of material protected by copyright. In essence, that the simple act of encrypting a file or integrating a TPM into a product that would otherwise not be protected by copyright would trigger the act. The courts have appropriately narrowed the scope of § 1201 to clearly state that it is only effective in situations where the work protected by the TPM is protectable by copyright. Three cases have been instructive in this way.

In Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., the plaintiff sold computer data storage systems and licensed the necessary operating software to customers.20 The software utilized a password protection scheme designed to prevent customers from reconfiguring the maintenance code. The defendant, an independent business specializing in the repair of data systems, circumvented the password scheme in order to diagnose problems with the plaintiff's systems. The court found that a copyright infringement claim was unlikely to succeed because copies of the maintenance code created when the defendant rebooted a customer's computer during repair work fell within the computer maintenance safe harbor of § 117(c). With that, the court addressed the plaintiff's circumvention count under § 1201(a)(1), and noted that “courts generally have found a violation of the DMCA only when the alleged access was intertwined with a right protected by the Copyright Act . . . . To the extent that [plaintiff's] rights under copyright law are not at risk, the DMCA does not create a new source of liability.”21 Holding that the circumvention itself was “not reasonably related to any violation of the rights created by the Copyright Act,” the Federal Circuit vacated plaintiff’s request for a preliminary injunction.22

The court in Storage Technology relied heavily on its earlier decision in Chamberlain Group, Inc. v. Skylink Technologies, Inc., an access control circumvention device case involving a garage door opener.23 The plaintiff's door openers contained software that continually changed the transmitter signal needed to operate the opener. The defendant bypassed this security measure so that its replacement transmitters could access the computer program and operate the plaintiff's door openers. The court affirmed a summary judgment in favor of the defendant on the plaintiff's § 1201(a)(2) trafficking claim, concluding that “17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners.”24

The Sixth Circuit reached a similar decision in Lexmark International, Inc. v. Static Control Components, Inc., which involved a printer manufacturer's use of an authentication sequence to prevent the printer's software from operating with refurbished toner cartridges.25 Since the plaintiff's technological measure blocked only one form of access and left the printer program otherwise accessible, the court held that the measure was not a viable access control protected by the DMCA. Judge Feikens’ concurring opinion, however, echoed the limiting interpretation of the statute adopted by the Federal Circuit: “Because Defendant's chip can only make non-infringing uses of the [plaintiff's] Printer Engine Program, it is clear Congress did not intend the DMCA to apply in this situation.”26

In contrast with a traditional copyright claim, several courts have held that copyright ownership or an exclusive license to the underlying infringed content is not necessary for standing in a DMCA claim; control over the content distribution or the DRM measures employed may be enough. In Comcast of Illinois X, L.L.C. v. Hightech Electronics, Inc., a cable television provider filed suit under §§ 1201(a)(2) and 1201(b) against a defendant involved in distributing devices used to pirate cable channels.27 The defendant filed a motion to dismiss arguing, among other things, that only copyright holders could pursue claims under the DMCA. Relying on § 1203(a)'s language that “any person injured by a violation of § 1201 or § 1202 may bring a civil action,” the district court held that standing was not limited to the copyright holder.28

Part II: DRM Technology

The focus this far has been on law; I now transition to a discussion of the technology itself to determine whether the law as articulated is compatible with the way the technology is actually employed. DRM is a broad term referring to a number of techniques and technologies for restricting the free use and transfer of digital content (software, music, movies, other digital data, and hardware). It is the preferred form of technical protection measures applied to file-based media content, such as downloadable music, video, and textual material. DRM operates in two ways: by using technologies to protect files from illicit use and by managing the financial transaction processing, ensuring that rights owners are compensated for the use of their IP protected work.

At the heart of DRM is the attachment of the rights granted in a licensed piece of content to the content itself.29 In this way, the content and the license remain intertwined for the full lifecycle of the content. In its most common application, DRM involves the encryption of content so that only a licensed hardware device or software solution may read or play it. Unlike simple copy protection, this encryption is based on a unique key that identifies the content, and includes metadata that helps users identify and locate the content. The playback device or system then uses the unique identifier to connect to a license server, which provides current information as to the status of the license and rights associated to the content. Usage rights associated with the content, especially if it is to be used offline, may also be included.30

How DRM Works

In a typical business model, such as the purchase of music through an online store like iTunes, the implementation of a DRM solution requires a content server, a license server, and a client.31 The content server contains the content itself and the associated product information in the form of metadata. The license server processes the transaction that creates a license to the content, identifies the rights granted in the content, and generates a unique key tied to both the user and the transaction.32 In order to render the content, the user requires a client that supports the selected DRM scheme, a digital license or key, and the encrypted content file itself.33 The ability to render DRM-protected content is limited to clients who support the particular technology employed by the content owner or vendor, often controlled by a license.34 Of course, this is one sample scenario, and a myriad of others exist. However, most employ some combination of digital access control, rights management, and a key, which unlocks and informs both access and use.

Digital Rights Use Controls

The use rights encoded into DRM-protected media are similar to those granted to authors under § 106 of the Copyright Act, and it is the explicit grant of those rights by license that is enforced. In particular, the rights to copy and distribute a work, as well as the right to prepare derivative works are controlled through DRM technology by limiting the ways a user may interact with a file.35 However, like the rights granted by a sophisticated license, the rights are considerably more specific, and can be divided into three categories: render rights, transport rights, and derivative work rights.36

Render rights control the medium and method by which the content may be viewed or heard.37 In the case of a document, a user may be granted the right to view it on a screen, but may not be allowed to print it.38 Or in the case of a song or film, the user may be allowed to play the entire work, or may be restricted to certain portions based on the license.39 Transport rights control how a work may be copied or distributed.40 In the Apple iTunes example, the FairPlay DRM system allows a work to be copied to a maximum of five authorized computers, but the authorization may be moved from one computer to another.41 Microsoft’s Zune, in contrast, allows a user to send a file to another Zune user; the recipient may listen to the file up to three times, and may not transfer it to another user; some music will not use this feature based on license restrictions embedded in the file DRM.42 Derivative work rights control a user’s ability to modify the work or to copy portions of it for use in another work.43

Access and Watermarking

Most DRM schemes employ encryption or access control to prevent the unauthorized playback of protected content.44 Playback of encrypted content requires a key, which is generally made available through a license, and as long as that license is valid, the file may be rendered. However, not all DRM systems employ encryption, or restrict the use of content by digital means. For example, digital watermarking is common in scenarios where the authenticity or tracking of content is important but the digital enforcement of rights is not necessary or is undesirable. A digital watermark is encoded into digital content through a method similar to encryption, which ensures it cannot be modified or removed.45 The watermark consists of additional information in the form of metadata that is invisible to the user, but can be read with special software.46 The file itself can be viewed, played, and copied like a normal file; the watermark will be contained in any resulting copies to allow for tracking and validation for authenticity.47

Part III: Fair Use

Fair use under the DMCA can be seen from three different perspectives: downstream fair use, the fair use provision under § 1201(b), and from a technically practical standpoint.

Downstream Fair Use

When a TPM is circumvented for the purpose of exercising fair use, it would appear on first review that such “downstream” fair use is not a defense to a DMCA violation. The court in Corley rejected fair use under § 107 of the Copyright Act as a defense to circumvention claims under § 1201, which many have read more broadly to mean that § 107 can never be a defense against a § 1201 violation. However, a closer examination of the Corley case, and discussion of fair use later in the Chamberlain case leave some part of this question still undecided.

The DeCSS decryption software at issue in Corley could be employed merely to watch a movie on a non-compliant player (a claimed fair use), but the unencrypted copy that it creates poses a substantial risk of unauthorized copying and distribution.48 The court was forced to consider a tool that was as effective for infringement as to fair use; the two were inseparable. The use of CSS was as much of a contractual issue as one of infringement. Only licensed users of CSS are given authorized keys to decrypt a protected DVD; as part of these agreements, licensees are required to comply with certain requirements, which include protections against copying or making available unencrypted copies of the DVD content.

If, however, Corley’s act of circumvention had been limited to allowing the playback of CSS protected DVDs on Linux, without also allowing for direct copies, the result might be different. One interpretation of cases like Storage Technology, Chamberlain, and Lexmark, is that a DMCA violation for the sole purpose of exercising fair use under § 107 should insulate an infringer from liability. In a footnote in the Chamberlain case, the Federal Circuit left this question open, stating,

We do not reach the relationship between § 107 fair use and violations of § 1201. The District Court in Reimerdes rejected the DeCSS defendants' argument that fair use was a necessary defense to § 1201(a), Reimerdes, 111 F.Supp.2d at 317; because any access enables some fair uses, any act of circumvention would embody its own defense. We leave open the question as to when § 107 might serve as an affirmative defense to a prima facie violation of § 1201. For the moment, we note only that though the traditional fair use doctrine of § 107 remains unchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is not infringement.49

Based on this footnote, it would appear the issue is still open for a case that more narrowly deals with fair use, without broader infringement concerns. Nevertheless, this narrow opening described by the Chamberlain court is purely hypothetical and remains as yet untested.

Judicial Merger of Access and Use

The Copyright Office, in the first of its triennial rulemaking proceedings on exemptions from the prohibition against circumventing access controls, noted that “[t]he merger of technological measures that protect access and copying does not appear to have been anticipated by Congress. Congress did create a distinction between the conduct of circumvention of access controls and the conduct of circumvention of use controls by prohibiting the former while permitting the latter, but neither the language of § 1201 nor the legislative history address the possibility of access controls that also restrict use. It is unclear how a court might address this issue.”50 A review of cases that reference § 1201(b) support this concern, as no case on record has yet found a § 1201(b) use violation without also finding a § 1201(a) access violation as well.51

In RealNetworks v. Streambox, RealNetworks distributed RealPlayer software that allowed users to play media files available on the Internet. 52 RealNetworks used an authentication sequence called the “secret handshake” to ensure that media files distributed using their RealServer software could only be received by RealPlayer clients. In addition, content owners could set a “copy switch” on their media files that would determine whether the RealPlayer software would allow consumers to download and save a copy of a streamed file. Streambox, relying on time shifting as a fair use under Sony, created a software program that circumvented the secret handshake and allowed users of its product to receive RealServer files. Streambox, whose purpose was to enable downloading, ignored the copy switch setting and always allowed users to copy the streamed files. Judge Pechman treated the secret handshake as an access control and the copy switch as a rights control, and found violations of both §§ 1201(a) and 1201(b).53

In a trafficking case like RealNetworks, the result is roughly the same under §§ 1201(a) and 1201(b). However, this is problematic when applied to the real issue at the core of the litigation – copying. The main purpose of the secret handshake and copy switch combination was to stop consumers from downloading copies of streamed files. However, a literal interpretation misses the key issue – use.

321 Studios and Corley applied the same troublesome rationale. Both involved a common component – a valid but unauthorized CSS key used to gain access to a DVD. However, to gain access to a DVD for the purposes of use, or to make a copy, a program must first access the DVD. The only hole left open is some degree of analog conversion. As the Second Circuit noted in Corley, a user could play a film on a CSS-protected DVD and “recor[d] portions of the video images and sounds . . . by pointing a camera, a camcorder, or microphone at a monitor as it displays the DVD movie.”54

In Ticketmaster L.L.C. v. RMG Technologies, Inc., a preliminary injunction was granted for direct and indirect copyright infringement, §§ 1201(a) and 1201(b) of the DMCA, as well as contract (terms of use) violations and a claim under the Computer Fraud and Abuse Act.55 Ticketmaster alleged that RMG had developed and marketed automated devices to access and navigate through Ticketmaster's website. Ticketmaster had developed a computer security program known as CAPTCHA designed to distinguish between human users and computer programs, and thereby prevent purchasers from using automated devices to purchase tickets. As to the DMCA claims, the court merged use and access, noting that

CAPTCHA both controls access to a protected work because a user cannot proceed to copyright protected webpages without solving CAPTCHA, and protects rights of a copyright owner because, by preventing automated access to the ticket purchase webpage, CAPTCHA prevents users from copying those pages. For the foregoing reasons, the Court finds that Plaintiff is likely to prevail on its DMCA §§ 1201(a)(2) and 1201(b)(1) claims.56

The result is the same from case to case; access controls precede use controls, and courts seem reticent to find a § 1201(b) violation without also finding an access violation, even when the core issue is about the use of protected content. However, you can not get to use without access.

Technical Circumvention Methods

As is demonstrated in the prior section, DRM is a “rendering” technology. Files are not unlocked and presented; instead, they rely on a rendering application that will display the file and enforce the content owners’ use restrictions. From this perspective, it is virtually impossible to get to the point of exercising “fair use” under § 1201(b), as a rendering application that authenticates access is required for the technology to work. Some argue that the courts have merged these two points in error; however, the judicial interpretation is driven by the reality of DRM technology.

An application capable of rendering a digitally-protected file must first access the file through the use of a decryption key, handshake, protocol, or other method. Use controls under § 1201(b) are managed by the rendering application, which controls how a file many be used. If a function is left open, then it is not an effective use control. For example, if the “print” function is disabled for a document, but through a mistake in the programming, “control-p” still works, we do not reach the issue of fair use under § 1201(b). Rather, there is no use control under § 1201(b), and the question does not arise. License limitations may be claimed, but those fall outside of the DMCA.

The primary way to bypass a use control is through a program designed to ignore or bypass the use controls used for a piece of content, using tools like those found in 321 Studios and Streambox. Despite the injunctive relief granted in both matters, such tools are still readily available on the Internet in their last released version. In addition, other circumvention tools continue to be developed, generally by “pirate” groups and “crackers” for the express purpose of breaking DRM protection. Consistent with judicial findings, such tools must first access a file (render it) in order to bypass a use control. Through the use of such applications, it is difficult to envision a way to exercise § 1201(b) fair use, as access is a necessary first step.

Another way to capture content from a digital file or stream is through analog capture. The court in Corley noted that such methods might not violate the DMCA, with the example of a video camera aimed at a television screen. Other more refined analog capture methods exist, including the ability to capture audio from a digital file as it is played on a computer, iPod, or sound system. However, a key issue with this type of conversion is that it likely removes file metadata (CMI), which may be a violation of § 1202 if the operator is aware of this removal. In fact, one might argue, analog conversion that removes CMI information is as harmful as digital copies that retain it. However, it is unclear as to whether such “line capture” technologies fall within the contemplation of the Corley court, which discussed the pointing of a “camera, a camcorder, or a microphone at a monitor” and noted that fair use does not require that the copy be of the highest quality or in the form preferred by the user.57 However, it is unclear whether the court considered more successful methods of analog conversion, such as screen captures, where the contents displayed on the screen are digitally recorded to a file for later use or audio captures, where an audio stream is recorded while playing. In these methods, a perfect digital copy is not created.

A key issue with screen captures and analog recordings is that they can be laborious, as each page of a document must be displayed and captured, or in the case of video and audio files, entire segments must be played and recorded.58 Scripts and tools exist that will use the authorized rendering program to open a file, after which other capture technologies are used to copy the desired content. Upon first glance, this would appear to violate only the use controls, as the file itself is opened by the appropriate application using a valid key, just as if the user has done so manually. However, this is where the concept of authorized use may arise. In Corley, the court noted that the CSS key used was indeed valid, but the program was not authorized to use it.

In the described scenario, we again have the issue of whether a software program requires authority to access encrypted content. The court in Ticketmaster found automated access to be circumvention under the DMCA; however, the TPM in question was designed to differentiate between human and automated use, blocking the latter. Based on the judicial history, a court would likely find a § 1201(a) violation in automation cases, though the “perfect” case has not been raised yet.

Summary

The analysis of the DMCA provided in this paper reveals that fair use is not protected under § 1201 for the following reasons: (1) the judicial merger of access and use controls; (2) the nature of DRM technology, which requires an authorized access in order to reach use; and (3) the sui generis nature of § 1201 which courts have generally interpreted not to be subject to the fair use defense. While dicta in Chamberlain suggests that fair use might apply to a circumvention device that is limited to use fully compliant with the defense and Corley leaves open some question of analog conversion for fair use purposes, the fact remains that fair use has not yet been successfully applied to § 1201.

Part IV: An International Perspective

The DMCA and related acts in other countries derive from provisions on rights management systems made by the World Intellectual Property Organization (“WIPO”) that adopted two international treaties: the WIPO Copyright Treaty (“WCT”) and the WIPO Performances and Phonograms Treaty (“WPPT”) establishing a common ground for the protection of technological measures and the DRM system.59

Specifically in articles 11 of the WCT and 18 of the WPPT, adequate legal protection and effective legal remedies are provided against any action “of circumvention of technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights and that restrict acts which are not authorised by them or permitted by law.”60

Articles 12 of the WCT and 19 of the WPPT establish the legal remedies against any act of unauthorised subtraction or modification of any electronic rights management information identifying a specific work and its right holders. Moreover, it is noted that this protection is effective only in the case when the person doing the unlawful act has knowledge that such an act will constitute an act of copyright infringement.61

European Union

Copyright issues and related rights in Europe are governed not by a single body of law but by legislation both at the European Union (“EU”) level and the national level. The EU creates directives, which EU Member States then implement individually in compliance with the directive. Technical protection measures are addressed in Directive 2001/29/EC, better known as the European Copyright Directive (“EUCD”), entered into force on June 22, 2001.62 Two provisions of the EUCD are particularly important in regard to TPMs: Article 6 of the EUCD requires EU Member States to provide for anti-circumvention provisions and deals with definitions and exceptions, and article 8 of the EUCD contains sanctions and remedies for the directive as a whole as well as with respect to article 6 of the EUCD on TPMs.63

Technical Protection Measures Under the European Union Copyright Directive

Like the DMCA, the EUCD makes the act of circumvention itself illegal. Article 6.1 of the EUCD requires Member States to provide “adequate legal protection against the circumvention of any effective technological measures.”64 The provision requires that persons engaged in circumvention are doing it with knowledge or reasonable grounds to know that they are pursuing circumvention of a protection measure, and that they do not have the authority to do so.65 Article 6.3 defines “technological measures” as follows:

For the purposes of this Directive, the expression ‘technological measures' means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorized by the rightholders of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.66

Unlike the DMCA, the definition does not explicitly separate between “access control” and “use control.” It also requires a link to a copyright or a “right related to copyright,” which provides for a potentially expansive application.

As to trafficking in circumvention technologies, the EUCD requires Member States to provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:

(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.67

The threshold for secondary liability here is almost identical to the DMCA, a level much higher than that in Sony or Grokster. Only the provision relating to marketing is notably different:

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.68

This effectively creates liability where a product is marketed by a third party in a manner violative of the act.

Limitations and Exceptions

A major controversy with regard to article 6 of the EUCD was the fear that TPM could be used to unreasonably extend copyright protection, since they can be used by copyright owners to block genuinely lawful acts such as copying permitted by exception, similar to the fair use debate in regard to the DMCA. Article 5 of the EUCD provides a list of exceptions Member States may apply to copyright infringement, though only the exception concerning ephemeral copying is mandatory for members to recognize.69 Member States may only apply exceptions from this list, though exceptions in place before June 22, 2001 are allowed to remain in force.70

Article 6.1 of the EUCD addresses the problem where copyright exceptions provided for in article 5 of the EUCD are blocked by the technological lockdown of the work. The exceptions set out in article 6.4 of the EUCD can be divided into two categories: the “public policy exceptions” and the “private copying exception.” While the public policy exceptions are mandatory, recital 51 of the EUCD clarifies that Member States should take appropriate measures only in absence of “voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other parties.”71

As to the public policy exceptions, recital 51 provides that “[t]he legal protection of technological measures applies without prejudice to public policy, as reflected in Article 5, or public security.” In addition, article 6.2 refers to the exceptions on copyright provided by Article 5.2: reproduction on paper,72 reproductions made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage,73 ephemeral recordings of works made by broadcasters74 , reproduction of broadcasts by social institutions such as hospitals and prisons for noncommercial purposes,75 use for the sole purpose of illustration for teaching or scientific research,76 uses for the benefit of people with a disability where the uses are directly related to the disability, noncommercial in nature, and to the extent required by the specific disability,77 and uses for the purpose of public security or to ensure the proper performance of administrative, parliamentary or judicial proceedings.78 In addition, recital 48 of the EUCD states that TPM should not hinder research into cryptography, and recital 51 of the EUCD clarifies that the legal protection of technological measures applies without prejudice to public policy as reflected in article 5 of the EUCD, or public security.79

The private copying exception is defined by Article 5.2(b) as an exception “in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation (…).”80 As above, Member States are not required to implement measures to allow for private copying “unless reproduction for private use has already been made possible by rightholders to the extent necessary to benefit from the exception or limitation concerned . . . without preventing rightholders from adopting adequate measures regarding the number of reproductions in accordance with these provisions.”81 Finally, both categories of exceptions do not apply to “on-demand” services, defined as works “made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”82

Most EU Member States have now implemented the directive, including the provisions concerning TPM and copyright exceptions. But the implementation reveals different approaches on this issue. As to the private copying exception, Denmark, for instance, does not mention any provision while the UK Copyright Act expressively refers to "time-shifting" as the only private copying exception. The most generous, Italy, authorizes one copy for personal use, even if the work is protected by technological measures, provided “the user has obtained legal access to the work and the act neither conflicts with the normal exploitation of the work nor unreasonably prejudices the legitimate interests of the rightholder.”83

If copyright owners do not take voluntary measures to allow the uses of exceptions as provided by the national law, different procedures exist for beneficiaries of the exceptions. In Denmark, beneficiaries may apply directly to a special Copyright License Tribunal, in Ireland to the High Court and in UK to the Secretary of State. In Denmark, when rightholders do not comply with the order within four weeks, beneficiaries may legally circumvent the TPM, as long as the consumer has gained legal access to the work. In other countries, such as Greece, the solution is sought in mediation and before the Court of Appeal when mediation fails.84

Private copying was addressed in a controversial French decision known as the Mulholland Drive case, the French Supreme Court (La Cour de Cassation) confirmed the legality of certain anticopy protection measures on DVDs.85 The plaintiff purchased a DVD of the film Mulholland Drive, and did not know it contained copy protection. After discovering that he could not copy the film onto VHS in order to watch it at his mother's house, he sued the production company and distributor for allegedly violating the private copy exception of the Intellectual Property Code.86 The Paris Court of Appeals agreed with the plaintiff’s interpretation, and ruled against the use of DRM to prevent the private copying of the DVD.

The French Supreme Court reversed, and found that the private copy exception did not apply in this case. It held that the Court of Appeals should have applied a three-step test from the EUCD before finding the anti-copy protection illegal.87 Also contained in the Berne Convention, the EUCD's test provides that the exceptions to the droit d'auteur “shall only be applied (1) in certain special cases which (2) do not conflict with a normal exploitation of the work . . . and (3) do not unreasonably prejudice the legitimate interests of the rightholder.”88

In overturning the Court of Appeals ruling, the Supreme Court explained that the private copy exception was not an absolute right, but merely an exception to the author's right, and must be strictly construed. Because the private copy impaired the normal exploitation of the work, which must account for the risks of infringement inherent in the digital environment and the economic significance of DVDs to the motion picture industry, the private copy exception did not apply.89 As such, the French Supreme Court found that interests of intellectual property rights holders override the private copy exception in regard to technical protection measures of this nature.

Fair Use: Key Differences Between the EUCD and DMCA

In summary, the EUCD applies exceptions that allow for the circumvention of technical protection measures as a mechanism to protect “fair use” of copyrighted materials protected by TPMs. However, the EUCD differ from the DMCA in several key ways:

  • The EUCD does not distinguish between “access controls” and “use controls”;
  • The exceptions listed in article 6.4.4 of the EUCD apply only to acts of circumvention as defined in article 6.4.1 of the EUCD, but not to trafficking in circumvention technology. As such, Member States are not entitled to introduce any exceptions to the anti-trafficking prohibition stated in article 6.2 of the EUCD;
  • The EUCD differentiates between public policy exceptions and the private copying exception. Public policy exceptions are mandatory; the private copying exception is not; and
  • Both the public policy exceptions as well as the private copying exception do not apply the material provided through an “interactive on-demand service.”

Most EU Member States have not taken measures to ensure that private copying exceptions will survive technological protection measures. While the Italian Copyright Act grants a limited “right” to make one copy of a work, even if it is protected by technological measures, most Member States have not addressed this issue.90 Moreover, an overall trend against a “right to private copying” in relation to technical protection measures seems to be confirmed by recent court rulings in France, Belgium, and Germany.91 Several of the new EU Member States, by contrast, have implemented the private copying exception, among them, for instance, Lithuania, Malta, and Slovenia.92

As a result of this reluctance to incorporate the optional private copying exception, most European nations also lack a fair use exception to technical protection measures. Much like in the DMCA, provisions were made to allow for fair use, yet these rights are virtually inaccessible. In most cases, they have either not been implemented by Member States or have been denied by the courts.

Australia

After the Australia-U.S. Free Trade Agreement came into effect in January 2005, Australia had two years in which to introduce stronger protection for technical protection measures, which it did by amending the Copyright Act of 1964 (“Copyright Act”).93 The amendments were introduced by the Copyright Amendment Act of 2006, which received royal assent on December 11, 2006, with the relevant provisions having come into effect on January 1, 2007 (“Amendment Act”).94

The Amendment Act introduces two definitions in relation to TPMs – an “access control technological protection” measure and a “technological protection measure.”95 These are equivalent to “access controls” and “use controls” respectively. Prior to the Act, a scheme was already in place that made trafficking in circumvention technology illegal.96 The Act introduced civil and criminal penalties for using a circumvention device to break an Access TPM in circumstances where the person knows, or ought reasonably to know, that using the device in that manner would have that effect. Prior to these amendments coming into force, it was not an offense to use a circumvention device. Like the DMCA, it is still not an offense to use a device or service to circumvent a TPM (use control).97

The Amendment Act provided specific exceptions to liability for using a circumvention device, which are very similar to exceptions built into the DMCA, including: circumvention with the permission of the copyright holder, interoperability, encryption research with permission of the copyright holder, computer security testing, online privacy (disabling the capability to collect or disseminate information about the online activities of a user), law enforcement and national security, and libraries for the purpose of making an acquisition decision in relation to work or other subject matter.98 There is an additional requirement that the computer program or work be a non-infringing lawfully obtained copy in the case of interoperability, computer security, encryption research, and online privacy, and that the act performed by the circumventor must not infringe the copyright in that computer program, work or other subject matter.

The Amendment Act also provides for additional exceptions to be made by regulation, much like the DMCA rulemaking procedure. Significantly, the new scheme does not apply to technical protection measures not connected to copyright infringement:

  • technologies solely designed for the purpose of market segmentation in cinematographic films or computer programs (such as region coding on DVDs);99 and
  • computer programs embodied in a machine or device protecting it from competition in aftermarket goods (restricting the use of goods or services in relation to that protected device, such as embedded software that restricts third party inkjet printer cartridges from working with a particular printer as in the U.S. Lexmark case).100

Much like the DMCA, these are the only specific exceptions to the act. There is no language specifically incorporating the Fair Dealing101 section contained elsewhere in the Amendment Act. However, it does create a link between the definition of an Access TPM and the existence of an underlying copyright:

access control technological protection measure means a device, product, technology or component (including a computer program) that:
(a) is used in Australia or a qualifying country:
(i) by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject-matter; and
(ii) in connection with the exercise of the copyright; and
(b) in the normal course of its operation, controls access to the work or other subject-matter [emphasis added]102

Similarly, the definition of a TPM (use control) also relies on the underlying copyright:

technological protection measure means …

in the normal course of its operation, prevents, inhibits or restricts the doing of an act comprised in the copyright;103

As such, a TPM (either access or use) must have a reasonable connection to copyright protection. However, it is unclear whether this link with an underlying copyright brings with it the Fair Dealing defense.

A primary selling point of the Amendment Act is that it finally clarified a key point in Australian copyright law – format shifting.104 There was some question prior to the Amendment Act whether consumers were within their rights to change the format of copyrighted content for private use, such as copying the music from a CD to an iPod. The Amendment Act clarified that an individual may do so, provided they legally obtain the content, and retain the original copy in their possession. Time shifting is also explicitly allowed for television and radio broadcasts (both over the air and subscription), though it does not extend to webcasts.105 In addition, Australia’s Fair Dealing provision was extended to include satire and parody.106

It is interesting to note that Australia has limited the scope of the Amendment Act to exclude region coding and product tying from the definition of circumvention.107 While this would prevent tying of goods which are not the subject matter of copyright, such as in Chamberlain, Lexmark, and Storage Technology, it likely would not extend to the use of DRM to tie content to specific players such as Apple uses to link iPods and iTunes. A distinction can be drawn between the use of a TPM to link non-copyrightable products such as ink cartridges from entertainment content, which is the subject of copyright law.

The Australian Amendment Act of 2006 is remarkably similar to the DMCA in both the nature of the protection and in the lack of liability for the bypass of use controls. Here, we have a nearly identical application of fair use through the exception of personal circumvention of use controls, which was established earlier in this paper to be impossible to exercise without also bypassing an access control. Similarly, the more common complaint in regard to fair use under the DMCA is also present: while individuals may bypass copy controls, the trafficking in tools to accomplish this goal is prohibited.

New Zealand

In April 2008, New Zealand passed its digital copyright law which has been heralded as one of the most beneficial to consumers. Like the Australian Amendment Act, it includes format and time shifting provisions as well as anti-circumvention provisions that are more flexible than those found in the DMCA.108 In fact, the anti-circumvention provisions are the first that appear to preserve fair use while achieving compliance with the WIPO treaty requirements.

In regard to TPMs, the New Zealand law prohibits the dealing in devices, means and information, enabling people to circumvent technical protection measures.109 The new law also introduced a limited criminal offense provision that applies to large-scale commercial dealing in devices, means and information, enabling people to circumvent TPMs. As a safety valve, the provision contains a knowledge requirement, which prohibits making, selling, distributing, advertising, or offering a circumvention device if the person "knows or has reason to believe that it will, or is likely to, be used to infringe copyright."

The Act defines a TPM circumventions device as a device or means that:

(a) is primarily designed, produced, or adapted for the purpose

of enabling or facilitating the circumvention of a

technological protection measure; and

(b) has only limited commercially significant application

except for its use in circumventing a technological

protection measure110

The act of trafficking in TPM circumvention devices or services is prohibited in the next section, and depends on the device or service meeting the definition of a TPM circumvention device.111 This drafting allows for certain acts and devices to fall outside the scope of the TPM legislation completely.

A similar approach is taken in the definition of a TPM, which:

(a) means any process, treatment, mechanism, device, or system that in the normal course of its operation prevents or inhibits the infringement of copyright in a TPM work; but
(b) for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for noninfringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a noninfringing copy of a work) [emphasis added]112

While the Australian Amendment Act explicitly states exceptions to its definition of a TPM as marketing controls and aftermarket product tying, the New Zealand Act is worded much more broadly. The approach appears to limit the definition of a TPM to a technology that protects against acts of infringement under New Zealand copyright law. If the act that a technology protects would not otherwise be considered copyright infringement, the technology is not considered a TPM, and the digital protections in the act do not apply. In contrast to the DMCA, it seems that the legislation does not create a new cause of action independent of copyright infringement; rather, the very definition of a TPM and TPM circumvention device are dependent on an underlying act of copyright infringement.

As to fair use, the law clearly permits circumvention for "permitted acts," which effectively preserves fair dealing rights, and also includes the right to circumvent for encryption research.113 The New Zealand law takes this protection of fair dealing a step further and includes a system to facilitate circumvention for permitted acts in the event that users are unable to circumvent a TPM themselves due to a lack of skill or available tools.114 In such cases, the law allows a "qualified person," which includes librarians, archivists, and educational institutions, to circumvent a TPM on behalf of a user. It even appears to allow a “qualified person” to be supplied with a TPM circumvention device for this purpose.115 This resolves the most common complaint regarding fair use and the DMCA – that the prohibition in trafficking of TPM circumvention devices negates the individual fair use provision.116

In finding the answer to the fair use quandary in paradise, one might ask how this affects the use of DRM to enable new business models. That also seems to be addressed – at least partially – in the New Zealand law. Section 81A(1) establishes the parameters of the private copying exception, followed by this restriction:

(2) For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that specifies the circumstances in which the sound recording may be copied.117

This appears to support the ability to restrict use by contract, and DRM use controls enforce contractual restrictions. Once the license grant is exceeded, infringement occurs, and the provision regarding TPMs would be invoked. Of course, this is a broad reading, and it would be useful to see how an application of DRM that only affects use, but not an exclusive right granted under copyright, is interpreted under the law. For example, the subscription model for music, which renders downloaded music unplayable without an active subscription, does not protect an exclusive right; rather, it affects use, which is not a right granted to a copyright owner under New Zealand law. The law could be interpreted to allow circumvention of such a control, in much the same way that one may circumvent region controls for DVDs. Unless tied to an exclusive right, TPM circumvention may well be allowed. Then again, in theory, the circumvention of such controls by an individual is allowed under the DMCA. However, as discussed earlier in this paper, users are unable to act upon this allowance.

Of the various implementations of digital copyright laws, it appears that New Zealand is perhaps the most innovative when it comes to fair use, building upon lessons learned through U.S. and European implementations. It incorporates fair dealing explicitly, allowing individuals to bypass TPMs for permitted uses that do not constitute copyright infringement. It also allows individuals to engage a third party to assist in circumvention on their behalf, addressing the concern that most individuals lack the expertise to do so. New Zealand is a country of “firsts,” being the first to grant women’s suffrage, the first to introduce the eight hour work day, and the first in the British Empire to have a female mayor. Now, New Zealand may be the first nation to comply with the WIPO treaties while preserving fair use in a way that is meaningful and accessible to its citizens.

Conclusion

Through a combination of the wording of § 1201, judicial interpretation, and the way that DRM technology works, the fair use concession under § 1201(b) is virtually impossible to “access” in the United States. Europe has even fewer provisions for fair use in the EUCD, with a fixed set of exceptions that Member States may optionally apply; where they exist, European courts have tilted the balance in favor of rightholders over consumers in an effort to support new business models. The Australian Amendment Act of 2006, meanwhile, is almost identical to the DMCA in regard to technical protection measures, and carries with it the same weaknesses as to fair use. New Zealand, however, appears to have taken a markedly different approach, ensuring that fair use is both explicitly protected and truly accessible. Based on this survey of digital copyright laws, it would appear that fair use in the digital age is theoretically sound but practically impossible. Unless you happen to be in New Zealand.

End Notes

  1. David Ray is an attorney practicing law in Portland, Oregon. He graduated from the IP LL.M. Program at the University of Washington School of Law in 2008.
  2. DMCA new U.S.C. sections created: 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001; U.S.C. sections amended: 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701.
  3. 17 U.S.C. § 107.
  4. 17 USC § 1201(a)(3)(A).
  5. 17 USC § 1201(a)(2).
  6. MGM Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154, 1158 (9th Cir. 2004); Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).
  7. 17 U.S.C. § 1201(b)(2)(B).
  8. Jane Ginsburg, in her article on § 1201 of the DMCA, points out that this provision was intentionally provided to foster new business models. THE PROS AND CONS OF STRENGTHENING INTELLECTUAL PROPERTY PROTECTION: TECHNOLOGICAL PROTECTION MEASURES AND § 1201 OF THE US COPYRIGHT ACT, Jane C. Ginsburg, Draft Paper Number 07-137, February 1, 2007.
  9. A wise move as we transition into a “green” economy.
  10. How it Works, Netflix.com, http://www.netflix.com/HowItWorks.
  11. H.R. Rep. No. 105-551, pt. 1, at 18 (1998).
  12. 17 U.S.C. § 1202.
  13. 17 U.S.C. § 1202(d).
  14. 17 U.S.C. § 1202(e).
  15. 17 U.S.C. § 1202(e)(2).
  16. Alpha Geek: Whip your MP3 library into shape, Part III: Metadata, LifeHacker.com, http://lifehacker.com/software/album-art/alpha-geek-whip-your-mp3-library-into-shape-part-iii-metadata-233336.php.
  17. Extensible Metadata Platform (XMP), Adobe.com, http://www.adobe.com/products/xmp/.
  18. Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, Copyright Office, effective November 27, 2006, http://www.copyright.gov/1201/.
  19. 321 Studios v. MGM, 307 F.Supp. 2d 1085, 1098 (N.D. Cal. 2004).
  20. IMS Inquiry Mgmt. Sys. v. Berkshire Info. Mgmt. Sys., 307 F.Supp. 2d 521 (SDNY 2003). Accord, Egilman v. Keller & Heckman, 401 F.Supp.2d 105 (DDC 2005).
  21. Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005).
  22. Storage Tech. Corp., 421 F.3d at 1318.
  23. Id. at 1319.
  24. Chamberlain Group v. Skylink Techs., 381 F.3d 1178 (Fed. Cir. 2004).
  25. Id.
  26. Lexmark Int’l. v. Static Control Components, Inc., 387 F.3d 522 at 547 (6th Cir. 2004).
  27. Id. at 564 (Feikens, J., concurring in part and dissenting in part).
  28. Comcast of Illinois X, L.L.C. v. Hightech Electronics, Inc., No. 03 C 3231, 2004 WL 1718522 (N.D.Ill. July 29, 2004).
  29. Id.; See also Echostar Satellite, L.L.C. v. Viewtech, Inc., Slip Copy, 2008 WL 331399 (S.D.Cal., February 05, 2008) (Because plaintiff contracted and purchased the distribution rights of the programming, the court found that plaintiff also had the authority to control the measures protecting the programming including filing suit under the DMCA); CoxCom, Inc. v. Chaffee, No. CIVA 05-107S, 2006 WL 1793184 at 10 (D.R.I. June 26, 2006) (citing Comcast and holding that “the entity which controls access to the copyright material” could assert a claim under the DMCA); Real Networks, Inc. v. Streambox, Inc., No. 2:99CV02070, 2000 WL 127311 at 6 (W.D.Wash. Jan.18, 2000) (finding that a non-copyright owner “has standing to pursue DMCA claims under 17 U.S.C. § 1203, which affords standing to ‘any person’ allegedly injured by a violation of §§ 1201 and 1202 of the DMCA”).
  30. Becker, Eberhard, Digital Rights Management: Technological, Economic, Legal and Political Aspects 4 (Springer 2003).
  31. Id.
  32. William Rosenblatt, William Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology 80 (M&T Books 2002).
  33. Id.
  34. William Rosenblatt, William Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology 80 (M&T Books 2002).
  35. Id. at 81.
  36. See 17 U.S.C. § 106. (Exclusive rights granted to copyright holders as to their works include 1) the right to reproduce, 2) the right to prepare derivative works, 3) the right to distribute, 4) the right to perform, 5) the right to display, and 6) the right to digital broadcast.).
  37. William Rosenblatt, William Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology 62 (M&T Books 2002).
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. iPod 101: Browse and Buy Music and Books, Apple.com, at http://docs.info.apple.com/article.html?artnum=304674.
  43. ‘Squirting’ with the Zine, ZuneSphere, http://www.zunesphere.com/2006/11/22/squirting-with-the-zune/; Universal and Sony prohibit Zune sharing for certain artists, engadget, http://www.engadget.com/2007/01/19/universal-and-sony-prohibit-zune-sharing-for-certain-artists/.
  44. William Rosenblatt, William Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology 62-63 (M&T Books 2002).
  45. Id. at 89.
  46. William Rosenblatt, William Trippe, and Stephen Mooney, Digital Rights Management: Business and Technology 98-100 (M&T Books 2002).
  47. Id.
  48. Id.
  49. “The use of DeCSS to view a DVD movie creates no loss to movie producers because the initial user must first purchase the DVD. However, once the DVD is purchased, DeCSS enables the initial user to copy the movie in digital form and transmit it instantly in virtually limitless quantity, thereby depriving the movie producer of sales.” Universal City Studios, Inc. v. Corley, 273 F.3d 429, 453 (2d Cir. 2001).
  50. Chamberlain Group v. Skylink Techs., 381 F.3d 1178, 1200 n.14 (Fed. Cir. 2004).
  51. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64,566, 64,568 (Oct. 27, 2000).
  52. Based on a Westlaw search for “1201(b)” and copyright. Twenty-six cases appear in the result list, and none find a 1201(b) violation standing on its own.
  53. RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311 (W.D. Wash. Jan. 18, 2000).
  54. Id.
  55. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
  56. Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F.Supp.2d 1096, 2007 Copr.L.Dec. P 29, 477 (C.D.Cal., October 15, 2007).
  57. Id.; The court declined to reach a finding on the Computer Fraud and Abuse Act claim, as it was able to grant the preliminary injunction solely on the copyright, DMCA, and contract claims.
  58. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir. 2001).
  59. Such tools will often play the file in fast-forward mode, reducing the conversion time.
  60. WIPO Copyright Treaty (“WCT”) Geneva 1996, WIPO Performances and Phonograms Treaty (“WPPT”) Geneva 1996.
  61. Id.
  62. WCT Article 12; WPPT Article 19.
  63. Council Directive 2001/29/EC, arts. 6 & 8, 2001 O.J. (L 167) 10 (EC) [hereinafter EUCD].
  64. Id. arts. 6 and 8.
  65. Id., art. 6.1.
  66. Markus Fallenböck, On the Technical Protection of Copyright: The Digital Millennium Copyright Act, the European Community Copyright Directive and Their Anticircumvention Provisions, 7 I.J.C.L.P. 36 (2002), available at http://www.ijclp.org/7_2003/pdf/fallenboeck-artikel-ijclp-1501-03.pdf.
  67. EUCD, art. 6.3.
  68. Id. art. 6.2.
  69. 17 USC § 1201(a)(2)(C).
  70. Id. art. 5.1.
  71. Id. art. 5.3(o).
  72. Id. rec. 51.
  73. Id. art. 5.2(a).
  74. Id. art. 5.2(c).
  75. Id. art. 5.2(d).
  76. Id. art. 5.2(e).
  77. Id. art. 5.3(a).
  78. Id., art. 5.3(b).
  79. Id., art. 5.3(e).
  80. Id., art. 48 & 51.
  81. Id., art. 5.2(b).
  82. Id., art. 6.4.2.
  83. Id., art. 6.4.4.
  84. Decreto Legislativo 9 Aprile 2003, n.68, in Gazzetta Ufficiale 14 Aprile 2003, n.87 (Italy), available at http:// www.parlamento.it/parlam/leggi/deleghe/03068dl.htm; Urs Gasser and Silke Ernst, EUCD Best Practice Guide: Implementing the EU Copyright Directive in the Digital Age (December 2006). U. of St. Gallen Law & Economics Working Paper No. 2007-01, p. 7, available at SSRN: http://ssrn.com/abstract=952561
  85. Urs Gasser and Silke Ernst, EUCD Best Practice Guide: Implementing the EU Copyright Directive in the Digital Age (December 2006). U. of St. Gallen Law & Economics Working Paper No. 2007-01, p. 7, available at SSRN: http://ssrn.com/abstract=952561
  86. Cass. 1e civ., Feb. 28, 2006, Bull. civ. I, No. 05-15824; see also Winston Maxwell & Julie Massaloux, French Copyright Law Reform: French Supreme Court Upholds Legality of DVD Anti-Copy Measures, Ent. L.R. 2006, 17(5), 145, 147 n.5.
  87. Maxwell & Massaloux, at 145-46.
  88. Id.
  89. Id. at 146.
  90. Id.
  91. Decreto Legislativo 9 Aprile 2003, n.68, in Gazzetta Ufficiale 14 Aprile 2003, n.87 (Italy), available at http:// www.parlamento.it/parlam/leggi/deleghe/03068dl.htm.
  92. Cass. 1e civ., Feb. 28, 2006, Bull. civ. I, No. 549 (Fr.), available at http://www.zdnet.fr/i/edit/ne/2006/02/arretcassation.pdf; La cour d'appel de Bruxelles 9ème chambre, Sept. 9, 2005 (Belg.), available at http://www.droit-technologie.org/jurisprudences/appel_bruxelles_ 090905.pdf; Bundesverfassungsgericht [Federal Constitutional Court] July 25, 2005, 1 BvR 2182/04 (F.R.G.), available at http:// www.bverfg.de/entscheidungen/frames/rk20050725_1bvr218204.html; see also http://constitutionalcode.blogspot.com/2005/09/german-constitutional-court-private.html.
  93. Urs Gasser and Silke Ernst, EUCD Best Practice Guide: Implementing the EU Copyright Directive in the Digital Age (December 2006). U. of St. Gallen Law & Economics Working Paper No. 2007-01, p. 7, available at SSRN: http://ssrn.com/abstract=952561.
  94. Australia-United States Free Trade Agreement, U.S.-Austl., May 18, 2004, 118 Stat. 919, art. 17.4.7(e)(i), available at http:// www.dfat.gov.au/trade/negotiations/us_fta/final-text/index.html.
  95. Copyright Amendment Act, 2006 (Austl.).
  96. Id. at § 226.
  97. Copyright Amendment (Digital Agenda) Act 2000 (Cth).
  98. Copyright Amendment Act, 2006 (Austl.), § 116AN (an element for circumvention liability requires that “the work or other subject-matter is protected by an access control technological protection measure”).
  99. Copyright Amendment Act, 2006 (Austl.), § 116AN.
  100. Copyright Amendment Act, 2006 (Austl.), subsection 10(1)(c).
  101. Copyright Amendment Act, 2006 (Austl.), subsection 10(1)(d).
  102. “Fair Dealing” is the British Commonwealth equivalent to fair use.
  103. Copyright Amendment Act, 2006 (Austl.), subsection 10(1).
  104. Id.
  105. Id. at 109A.
  106. Id. at 110AA.
  107. Id. at 41A, 103AA.
  108. Id. at subsection 10(1).
  109. Copyright (New Technologies) Amendment Bill (N.Z.), §§ 81A, 84.
  110. Id. at § 226A.
  111. Id. at § 226.
  112. Id. at § 226A.
  113. Id.
  114. Id. at § 226D.
  115. Id.
  116. Id. at § 226E(2)(b).
  117. Id.
  118. Id. at § 81A(2).

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