Re: Writing "press the shift key" alleged to be violation of DMCA

Thank you, Chris. Your information about where to look for more information is greatly appreciated.

I've been studying the Final Rule. (Particularly page 14.) The following are pertinent quotes from the Final Rule at http://www.copyright.gov/fedreg/2000/65fr64555.pdf :

        "Congress prohibited only the conduct of circumventing access
        measures and declined to enact a comparable prohibition against
        circumvention of measures that protect the rights of the copyright
        owner under 1201(b). The prohibition if 1201(b) extends only to
        devices that circumvent copy control measures. The decision not to
        prohibit the conduct of circumventing copy controls was made, in
        part, because it would penalize some non-infringing conduct such as
        fair use."

        "The merger of technological measures that protect access
        and copying does not appear to have been anticipated by
        Congress.(14)"

        (14) is the following footnote.

        "However, CSS was already in development in 1998 when
        the DMCA was enacted. It cannot be presumed that the
        drafters of section 1201(a) were unaware of CSS. If CSS
        does involve a merger of access controls and copy controls,
        it is conceivable that the drafters of section 1201(a) (1) were
        aware of that. And it is quite possible that they anticipated that
        CSS would be a "technological measure that effectively controls
        access to work."

        "It is unclear how a court might address this issue. It would be
        helpful if Congress were to clarify its intent, since the
        implementation of merged technological measures arguably would
        undermine Congress's decision to offer disparate treatment for
        access controls and use controls in section 1201."

My comments:

No exception was granted on the assertion of those who described CSS access controls as merging with copy controls "such that one of the two control functions of the technology cannot be circumvented without also circumventing the other." Proponents for this exemption argued that when the controls are merged, the technology "exceeds the scope of the congressional grant." However, they offered no convincing explanation of the technological necessity for circumventing the access controls in order to circumvent the copy controls on CSS protected DVDs. "In contrast, there was specific testimony that an analog output copy control on DVD players, Macrovision, could be circumvented by an individual without circumventing the CSS protection measures and without violating section 1201(a)(1)."

The Librarian reasoned that "If the copy control aspects of CSS may be circumvented without circumventing the access controls, this is clearly not a violation of Section 1201(a)(1)(A)."

After thinking about it, I've come to believe that access is the ability to take ownership liberties with a file apart from or in addition to copying. The technological measures I employ effectively prevent access, while incidentally preventing those methods of copying which facilitate direct access to the files themselves. However, screen shot copies can still be made for non infringing use without accessing the image files or circumventing my technological access controls, and, as prohibited by 1202(b)(1), without removing my images from copyright notices, titles, and terms on the gallery display pages.

Since my technological measures at Novel Art are designed to prevent visitors from taking ownership liberties with individual image files, I think 1201(a)(1) does apply when visitors circumvent one or more of those technological measures and access my images. Of course, that's just my analysis. A judge could see it differently or Congress could clarify the issue and shoot my arguments down.

Linda Gruber

Novel Art
http://www.novelart.com

> Chris Mohr wrote:

>The difference in meaning is plain from the language of the statute. 1201(a)
> of the statute proscribes both the act of traffecking in circumvention
> devices and circumventing access controls. _Copy_ controls are addressed
> separately--see 1201(b)(only prohibiting the -trafficking- in a device that
> circumvents a technological measure designed to control the exercise of one
> of the copyright owner's exclusive rights). Causes of action for the
> circumvention of -copy- controls don't exist under the DMCA (unless you
> count the macrovision provision, which I also assume we're not talking
> about).
>
> But don't take my word for it. In its 2000 final rule promulgating a
> regulatory exemption from 1201(a), the Copyright Office goes on at some
> length about the difference, as it has no jurisdiction over copy controls.
> (See www.loc.gov/copyright-. In addition to the final rule, check out the
> Joint Reply Comments filed by the entertainment industry, which are pretty
> good on this point.). That's why CSS was an access control--it only
> permitted access on licensed players containing the proper key. It may well
> be that a DRM scheme would contain both copy and access controls, but it's
> only circumvention of the latter that is actionable.
Received on Thu Oct 16 2003 - 23:00:06 GMT