Re: 17 USC 1201 (circumvention) cases?

On Mon, 24 Jan 2000, George L. Abbott <glabbott[_at_]library.syr.edu> wrote:
>
> On Thu, 20 Jan 2000, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
> >
> > On Wed, Jan 19, 2000, George L. Abbott <glabbott[_at_]library.syr.edu> wrote:
> > >
> > > On Sun, 16 Jan 2000, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
> > > >
> > > > Does anyone know of cases or appeals involving violations of 17 USC
> > > > 1201 copy protection circumvention. The law is relatively new, and
> > > > the grace period for circumvention actions has only recently expired.
> > > >
> > > > My current interest are the MPAA DVD/DeCSS case(s).
> > > >
> > > > I'm aware of cases involving Sony v. Connectix, and RealNetworks v.
> > > > MP3.com (I think). The RealNetworks action appears to have been
> > > > dropped. What's the status of the Connectix case? Last action I'd
> > > > heard of was for a Sept 14, 1999 court date.
> > > >
> > > > There's also the Sony v. Bleem case.
> > > >
> > > > Nintendo has pursued actions of similar nature.
> > > >
> > > > Anything else?
> > >
> > > I don't think the grace period has expired yet. In 17 USC 1201 (a)
> > > the grace period is specificed as two years from the date of
> > > enactment which would make it October 28, 2000. There is
> > > currently a request for written comments on how this provision will
> > > impact legal uses. (Due by Feb. 10). For more info see the site
> > >
> > > http://www.loc.gov/copyright/1201/anticirc.html
> >
> > It's important to note that the grace period applies *only* to 17 USC
> > 1201(a). The MPAA cases in NY and CT are based on alleged violations
> > of 1201(b), for which there is no grace period.
>
> I disagree. As I read Section 1201 (b) it is based on 1201 (a) and
> 1201 (c) and not a separate prohibition. It is an exception to the
> prohibition put forth in (a). Section (b) refers to the actions
> *after* the 2 year period when the class of works to be determined
> under the section (c) have been established. All three sections
> it would appear are subject to the grace period. Thus section (b)
> is not in effect.
>
> What section (b) says it that after section (a) takes effect the
> prohibition shall not apply to persons who are using those classes
> of works that have been determined by the Librarian of Congress in
> the two year period Oct.1998 through Oct 2000 to be adversely
> affected (not able to perform noninfringing uses) by the prohibition.

As I read the statute, 1201 has 3 major prohibitions.

The first is the anti-circumvention provision of 1201(a)(1), which prohibits individuals from circumventing technology measures that control access to copyrighted works. According to 1201(a)(1)(A), this provision doesn't take effect until after a 2-year grace period. This is the only one of the three prohibitions with a 2-year grace period.

The second is the anti-trafficking provision of 1201(a)(2), which prohibits trafficking in devices or services for circumventing technology measures that control access. There is no grace period for this provision. It is in effect today.

The third is the anti-trafficking provision of 1201(b), which prohibits trafficking in devices or services for circumventing technology measures that protect the rights of a copyright owner (i.e., such as devices to prevent or inhibit copying of a work). There is no grace period for this provision. It is in effect today.

For what it's worth, I'm teaching an IP seminar right now on this part of the DMCA, so I'm 95% confident in my reading of the Act on these points.

      Regards,
            Bob Kreiss
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* Robert A. Kreiss                          Ph. 937-229-2256 
* Professor of Law and                                       
* Director, Program in Law and Technology                    
* University of Dayton School of Law                         
* Dayton, OH  454469-2772                                               
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