DRM

The DMCA's ban on Circumvention

In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) which prohibits the circumvention of Technological Protection Measures (TPMs). These anti-circumvention provisions are codified in section 1201 of the copyright statute. TPMs are digital locks encoded in content in an attempt to control access to copyrighted works. For example, the code on an iTunes file or a DVD that keeps you from copying it is a digital lock. While there are programs available that can strip these files of their TPM code, it would be a violation of section 1201 to circumvent the encryption placed on a DVD or an iTunes track. This ban on circumvention applies even when the copy made is completely legal. What’s more, the law reinforces this by prohibiting the marketing or distribution of devices and software that allow for circumvention of access controls and digital locks. Because of this prohibition, movie critics will never be able to legally post a clip or excerpt of a protected movie online. Likewise, anyone who watches a protected movie or time-shifts using a Linux-based machine will be in violation of section 1201.

As more and more technologies move to digital platforms, uses that are fair in the analog world will no longer be possible if copyright owners continue to use TPMs. For example, devices that allow streaming media to be time-shifted may never emerge. A company called Streambox introduced a product that would do just that and was promptly sued by RealNetworks. RealNetworks successfully obtained an injunction against the marketing of this technology.

Exceptions to the Circumvention Ban

There are a few narrow exceptions to this circumvention ban, including circumvention by law enforcement authorities, circumvention to achieve interoperability, and circumvention for the purposes of encryption research. In response to concerns that the blanket ban on circumvention would prevent circumvention for fair uses and lawful uses, Congress included a provision in section 1201 that requires the Librarian of Congress to conduct a rulemaking once every three years and to exempt certain classes of copyrighted works from the prohibition with respect to specific users who are adversely affected by it.

However, the triennial rule making proceedings have thus far failed to provide digital consumers the necessary relief from section 1201’s restrictions on fair use. The first flaw in the rulemaking proceeding is that it applies only to the prohibition on circumvention and not the prohibition on marketing tools that allow circumvention. As a result, an individual user who gets the right to circumvent – if he lacks the technical ability to do so himself, will not be able to legally buy the tools that would allow him to circumvent. Second, the rulemaking proceedings themselves are conducted in a manner that makes it very difficult, if not impossible, for consumers to obtain any relief. The process for requesting an exemption is extremely complicated.