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Circumvention Of Copyright Protection Systems

This memorandum is intended to provide you with basic information about the prohibition against circumvention of copyright protected systems under the Digital Millennium Copyright Act of 1998.

The Digital Millennium Copyright Protection Act (DMCA)

The DMCA was signed into law in October of 1998. Its provisions implemented two World Intellectual Property Organization (WIPO) treaties entered into by the United States. One of the primary objectives of the WIPO treaties was to obligate all member states to enact laws to prevent circumvention of technology measures used to protect copyrighted works, and to prevent tampering with the integrity of copyright management systems. The DMCA, which appears as a new Chapter 12 to Title 17 of the U. S. Code, among other things, provides in 17 USC Section 1201(a)(1) that no person shall circumvent a technological measure that effectively controls access to a work protected under this title. The Act also contains prohibitions against the manufacture, import, offer for sale or otherwise trafficking in technology, products, service, devices or components the primary purpose for which is to circumvent technology measures used to protect copyrighted works.

What is circumvention of technology protection measures?

Under the DMCA to circumvent a technology measure means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technology measure, without the authority of the copyright owner. (17 USC Sec. 1201(a)(3)(A). A technology measure is defined as a measure that effectively controls access to the 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. (17 USC Sec. 1201 (a)(3)(B).

How far does the prohibition against circumvention go?

The law prohibiting the circumvention of copyright protected technology measures is relatively new, therefore, there is little case law interpreting the new law. However, a few cases have been brought under the DMCA that have provided some guidance regarding the limits of the prohibition. A Federal Court in New York in the case of I.M.S. Inquiry Management Systems, LTD v. Berkshire Information Systems, Inc., 307 F. Supp 2nd 521, has held that the unauthorized use of a valid password to enter a protected internet web site is not a violation of the DMCA, although it may be a violation of other laws. The Court found that while a password protection system is a technology measure protected from circumvention under the DMCA, for there to be a prohibited circumvention there must be avoidance or bypassing of the technology measure. Mere use of a password, even an unauthorized use, is not enough to violate the circumvention provision of the DMCA. Hacking or the use of some code or devise to avoid or bypass the technology measure is required.

How is copyright circumvention different from copyright infringement?

First, in order to file a claim of copyright infringement the claimant must have registered the work that has been infringed with the U.S. Copyright Office. An action for circumvention under the DMCA does not have as a prerequisite the registration of the work. Secondly, without the need to file a copyright registration for the work there is no issue, which often occurs in infringement actions, about whether or not the registration covers the work that has been infringed. Also, under the DMCA there are a number of exceptions to the circumvention prohibition including the right of a person who has lawfully obtained the right to use a copy of a computer program to circumvent a technology measure to identify and analyze elements of the program necessary to achieve interoperability with another program, to the extent acts of identification and analysis dont constitute infringement.

Remedies for circumvention

There are various remedies available to a person injured by a violation of the DMCA. A civil action for any such injury can be brought in Federal court. The court can grant both equitable and monetary damages, and statutory damages are available. In addition, it is a criminal offense to violate the Act willfully and for the purpose of commercial advantage. Penalties range up to a $500,000 fine or up to five years of imprisonment for the first offense. A second offense allows fines up to $1,000,000 or up to ten years imprisonment.

Momkus McCluskey, LLC has an active intellectual property practice. The firm offers comprehensive legal services to its clients with regard to trademarks, copyrights, trade secrets, licensing and other related intellectual property matters. If you have questions about any of the information presented in this memorandum or regarding any other intellectual property issues please give us a call at (630) 434-0400.

Momkus McCluskey, LLC