Circumventing Copyright Controls

You may come across digital works that contain copyright controls, such as digital rights management (DRM) technology or a software copy protection system. As a general matter, you should not circumvent these copyright controls, or you may face civil and criminal penalties under the Digital Millennium Copyright Act (DMCA).

Some copyright owners embed a form of DRM into their digital work in order to control its use and distribution. Typically, copyright controls come in two flavors:

  1. access-control measures designed to keep you from accessing the work; and
  2. copy-control measures that limit what you can do with the work after you have access (e.g., whether you can copy the work, how many copies can be made, how long you can have possesion of the work, and the like).

The DMCA prohibits circumventing access-control measures. 17 U.S.C. § 1201(a)(1). For example, if you cannot watch a particular copyrighted DVD on your laptop because of an encryption system, the DMCA makes it unlawful for you to bypass this access-control measure. Access-control measures may also be found on eBooks, Internet streaming platforms, and password-protected sections of websites, among other things. Note that there is no ban on the act of circumventing copy-control measures, but it is illegal for anyone to provide you with the technological tools to do so. In any event, some copyright holders merge access-control and copy-control measures in the same DRM system, making it impossible to circumvent copy-controls (which is not prohibited) without circumventing access-controls (which is prohibited).

The DMCA also prohibits trafficking in devices or tools that help other people circumvent access-control and copy-control measures. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. Beware: you can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. Nevertheless, it illustrates how risky it is to host or even link to devices or tools that enable others to break access- and copy-controls.

Fair use is not a defense to a prohibited act of circumvention or trafficking. It does not matter that you or someone else has to circumvent DRM in order to make fair use of a copyrighted work. This is one of the reasons that the DMCA is so controversial.

There are, however, several exemptions built into the DMCA that permit the circumvention of access- and copy-control measures for limited purposes or the limited distribution of circumvention tools in particular circumstances. In addition, the DMCA directs the Librarian of Congress, upon the recommendation of the Register of Copyrights, to publish a list of classes of works to be exempted from the anti-circumvention provisions of the DMCA. The Librarian makes the determination of which classes of works to exempt based on a determination, made pursuant to a complex rule-making process, that fair use of a particular class of works is likely to be adversely affected by the anti-circumvention provisions of the law. The best known current exemption is for "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." Memorandum of Librarian of Congress on 1201 Recommendations. This exemption apparently allows cell phone users to "unlock" their phones for use with other carriers, so long as this is the only motivation. The impact of the cell phone companies' user agreements on this exemption is still uncertain. For more on the story, see Wired's Legal or Not, IPhone Hacks Might Spur a Revolution.

The DMCA is complicated, and this page gives just a brief summary of the anti-circumvention and anti-trafficking provisions. For more detailed analysis, see the Chilling Effects FAQ about Anticircumvention and The Internet Law Treatise.


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