What does circumventing access controls mean in the Digital Millennium Copyright Act?

What does circumventing access controls mean in the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act is a law that was introduced in the United States in 1998 to update the Copyright Law of the United States.  The Copyright Law was written long before inventions such as computers and the internet existed.  The Digital Millennium Copyright Act was intended to update the copyright law to deal with these new technologies.  The Digital Millennium Copyright Act deals with many different issues, in this blog post we will review the prohibition against circumventing access controls.

Section 1201(a)(1) of the Digital Millennium Copyright Act states: No person shall circumvent a technological measure that effectively controls access to a work protected under this title.  Section 1201(a)(3)(B) of the Digital Millennium Copyright Act states: 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.  And Section 1201(a)(3)(A) of the Digital Millennium Copyright Act states: to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.

Stated another way, the Digital Millennium Copyright Act prohibits the decrypting digital media.  DVDs are a good example.  DVDs are encrypted using a method called the Content Scramble System.  The Content Scramble System controls access to the movie on the DVD.  If you attempt to bypass the Content Scramble System, that would be a violation of the DMCA.  The Content Scramble System is one of many pieces of software also known as Digital Rights Management software.  Products that are protected by Digital Rights Management software cannot legally be accessed without the permission of the copyright holder.

Section 1201(a)(2) of the Digital Millennium Copyright Act prohibits the trafficking of technology to enable others to circumvent technological measure that effectively controls access to a copyrighted work. So even if you are not actively circumventing access controls, you would still be violating the Digital Millennium Copyright Act if you provide circumvention tools to other people.  Merely posting circumvention tools on your website or posting a link on your website to another website that contains circumvention tools has been found to be a violation of the Digital Millennium Copyright Act.

The Fair Use defense to copyright infringement will not protect you from liability for circumventing access controls.  The Digital Millennium Copyright Act does not provide an exception for Fair Use, and the Courts have not held that circumventing an access control to make fair use of a copyrighted work is a defense to copyright infringement.

There are some limitations to the Digital Millennium Copyright Act’s anti circumvention provision.  It is not considered a violation the Digital Millennium Copyright Act if the purpose of the circumvention of the access controls is for the purpose of:

  • Reverse engineering to allow computer programs to inter-operate;
  • Encryption Research;
  • Protecting children from content on the internet;
  • Protecting Personally Identifiable Information; or
  • Security Testing.

In those cases, assuming that you legally purchased your copy of the copyrighted work and you are not engaging in copyright infringement beyond circumventing the access controls, you would not be liable for copyright infringement under the Digital Millennium Copyright Act.

The Digital Millennium Copyright Act also directs the Librarian of Congress to publish a list of types of copyrighted works to be exempted from the anti-circumvention provisions.  Works are placed on the list after a complicated rule making process.  One notable exemption is the firmware which allows cell phones to connect to the cellular network.  The exemption allows cell phone owners to reprogram their phones to connect to a cellular network of their choice.  This is commonly known as jail breaking the cell phone.  It should be noted that even though jail breaking a cell phone may not be a violation of the Digital Millennium Copyright Act, it may violate the terms of your contract with the cell phone company.

The anit-circumvention provision of the Digital Millennium Copyright Act is complex, if you have questions about it you should consult with an attorney that specializes in copyright law.