by Jeremiah Clifton
Statutory Law
The Digital Millennium Copyright Act of 1998 (DMCA) amended Title 17 of the U.S. Code in many ways, but of particular controversy is the amendment related to DRM. The DMCA added chapter 12 to the Copyright Law entitled “Copyright Protection and Management Systems.”1 The Audio Home Recording Act of 1992 introduced rights management, but it was only the encampment and not the charge.2 With chapter 12 dedicated to it, DRM became a more embedded piece of legality that consumers and professionals dealing with digital media must face. Of interest is that chapter 12 deals with DRM specifically and does not deal with copyright or even intellectual property, and although it deals with civil remedies and criminal offenses, neither chapter 12 nor the legal action associated pertain to copyright infringement. However, DRM is now a major part of the Copyright Law in the U.S.
Circumvention
The very first provision of chapter 12 deals with circumvention of copyright protection systems.3 As to whether it is ok to circumvent DRM technology for access, the law is very clear: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”4 The law does provide exemptions and the possibility of future exemptions; however, for all practical purposes it is illegal to circumvent a DRM system in order to gain access to media – even if the media were acquired legally.5
Access
It is illegal “to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component” that could be used to circumvent a DRM system that “effectively controls access to a [protected] work.”6 The law states that “a technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”7
Rights
Section 1201 not only protects DRM used for access control, but effectively creates a new right for copyright holders to control access to their works by making it illegal “to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component” that could circumvent a DRM system that “effectively protects a right of a copyright owner.”8 In this instance, “a 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.”9
  1. Digital Millennium Copyright Act of 1998, Pub. L. no. 105-304, 112 Stat. 2860 (October 28, 1998)
  2. see Audio Home Recording Act of 1992, Pub. L. no. 102-563, 106 Stat. 4237 (October 28, 1992) as enacted in Title 17 – specifically 17 U.S.C. § 1002 (2006) for rights management mandates in the AHRA
  3. 17 U.S.C. § 1201 (2006)
  4. 17 U.S.C. § 1201 (a)(1)(A) (2006)
  5. For exemptions see 17 U.S.C. § 1201 (d-j) – fair use is specifically covered in 1201 (c) but only as a defense of copyright infringement, not circumvention violation (more about this in the section on fair use), for possibility of future exemptions see 17 U.S.C. 1201 (a)(1)(C) (in the exemptions there is no mention of whether lawfully acquired media has any bearing on circumvention violation)
  6. 17 U.S.C. § 1201 (a)(2) (for what is covered) and (a)(3) (for definitions) (it is recommended to read the entirety of 1201 (a)(2-3) to truly understand what is illegal)
  7. 17 U.S.C. § 1201 (a)(2)(B) (2006)
  8. 17 U.S.C. § 1201 (b)(1) (2006)
  9. 17 U.S.C. § 1201 (b)(2)(B) (2006)