Re: 17 USC 1201 (circumvention) cases?

On Thu, 27 Jan 2000, Stefan Bechtold <stef[_at_]n-bechtold.com> wrote:
>
> On Tue, 25 Jan 2000, Robert A. Kreiss <kreiss[_at_]odo.law.udayton.edu> wrote:
> >
> > 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.
>
> What is the difference between
>
> a) technology measure that controls access to copyrighted works and a
> b) technology measure that protect a right of the copyright owner?
>
> If you "access" a work in a digital environment, your computer will
> make a copy of the work. According to the MAI decision this copying
> is covered by the right of reproduction of the copyright owner.
> Therefore any access will affect a right of a copyright owner. Is
> this correct?
>
> I would be happy if I am wrong...

Consider the case in which the principal objective is to gain access to the information content of a data compilation which satisfies the basic originality requirements of Feist v. Rural Telephone. The compilation work copyright does not extend to the informational content itself. Accepting arguendo that accessing a work in a digital environment makes a copy, MAI does not stand for the proposition that every unauthorized making of a copy is unprivileged. Copying a work for the sole purpose of gaining access to unprotected informational content might very well be a fair use -- especially where the work is entitled to, in any event, only thin protection because it is merely a compilation. (Further, though not central to my comment, recent Federal and Fifth circuit opinions in DSC v. Pulse Communications and Alcatel v. DGI indicate the existence of reservations about the Ninth Circuit speaking too braodly in MAI. The expression of reservation is particularly notable given that both courts concluded that the specific facts of the case did justify application of MAI, something which makes the statement of reservations about the breadth of MAI gratituous, but clearly an intended signal rather than mere dictum).

But back to the main point. Copyright protection of a compilation or other work does not extend to its informational content. Use of anti-circumvention devices or means to protect against access are directed not solely or even primarily to prevention of copying of that which is protected by a compilation work's copyright -- or purely data files in other works. The principal use is to technologically barricade against access to content that is not protected by the work's copyright. So long as some reasonably adequate techonological access control or prevention means do exist and are used, the DMCA provisions that make circumvention of such access-regulating means or devices unlawful deal very much more with database protection than with protection against unauthorized copying of protected expressive elements.

So, I argue ... aye, there's a difference. It is one that piggybacks database protection (not yet directly enactable) on what otherwise is a legislative measure that already goes well beyond what is required for national implementation of the provisions of the WIPO treaties. Some of the legislative history recognizes this by indicating that the particular statutory provisions are not based in the Patent and Copyright Clause of the U.S. Constitution, but in congressional exercise of its general public welfare and commerce legislative powers.

• - - - - - - - - - - David A. Rice Professor of Law Roger Williams University School of Law Ten Metacom Avenue Bristol, RI 02809 USA PH: 401.254.4623 FAX: 401.254-4640 drice[_at_]world.std.com