"Circumvention" is the new crime created by the Digital Millennium Copyright Act, section 1201, a.k.a. the anticircumvention provision. 1201 makes it illegal to "circumvent a technological measure that effectively controls access to a work protected under \copyright\", or create or distribute tools to circumvent access or copy controls. This means that if a publisher encrypts something before distributing it, it's now illegal to decrypt, even if the encryption robs you of fair use rights in the material. (And "effective" doesn't mean decent, either, only 'having the effect of'.)

The anticircumvention provisions are currently being challenged in Universal v. Reimerdes (the DeCSS case), Felten v. RIAA, and U.S. v. Sklyarov. A number of computer scientists, cryptographers, and law professors have joined the outcry calling this statute unconstitutional.

The law

"Anticircumvention" became a legal issue in the U.S. after the passage of the Digital Millennium Copyright Act of 1998, targeted at the piracy of music, film, and books. Section 1201, part of Title I of the DMCA and now found in Title 17 of the United States Code, is reproduced below in relevant part.

Section 1201. Circumvention of copyright protection systems

(a) Violations regarding circumvention of technological measures

(1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title (i.e. any copyrighted work - ed.). ...

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

(b) Additional violations

(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

"So what?" you're saying. Read a bit further and you'll notice that

Any person who violates section 1201 willfully and for purposes of commercial advantage or private financial gain (1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

One of the first anticircumvention cases under this law was directed against the Streambox, designed to download RealMedia files from the internet, save them to disk, and convert them to WAV, WMA and MP3 formats. These files were not designed to be downloaded: RealPlayer itself would only stream them, and that was exactly what the content providers wanted. So RealNetworks filed suit in December 1999 and won a preliminary injunction against Streambox the following January, based on contributory infringement and anticircumvention arguments. They were shut down easily. Other nuts would prove slightly tougher to crack.

Anticircumvention vs. the First Amendment

Episode 1: The DivX Menace

In 1999, a Norwegian kid named Jon Johansen reverse engineered the CSS encryption used on DVDs. (CSS was a standard developed by Matsushita and Toshiba to keep people from duplicating DVDs without licensed duplicating equipment: the idea was to avoid the problems of piracy that had arisen with CDs.) Having broken the CSS code, Johansen wrote it into a program called DeCSS, which made it possible to "rip" a DVD to a hard drive, and then burn the image to another DVD, or compress it into a DivX file and burn it to CD, or put the file online and let file sharing spread it to every corner of the Earth.

After Johansen put DeCSS online, the movie companies raised hell and he was arrested by Norwegian authorities. Then, Eric Corley, better known as 2600 Magazine publisher Emmanuel Goldstein, published the DeCSS source code on the magazine's website. The movie companies jumped on this too, and filed suit against Corley to have the code removed. See Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000).

Corley raised a few defenses to the suit. The most interesting was a First Amendment defense: that computer code was a form of speech entitled to constitutional protection. Given that the DMCA was a mere act of Congress, the constitution should trump it.

The district court entertained this argument... and even agreed with it, to a point. The court held that code is speech and entitled to First Amendment protection. But from there, the court shot down Corley's defense by holding that the DMCA's regulation of that speech was constitutional. What the DMCA regulated was not the content of the speech, but its function. And the regulation was narrowly tailored to serve a substantial government interest: in ensuring that copyrighted works could not be distributed in an unauthorized manner. The Second Circuit agreed with this logic on appeal, in Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2001).

Episode II: Attack of the Acrobats

Meanwhile, a Russian company called ElcomSoft was reverse engineering the Adobe eBook standard. Adobe had developed the eBook as a companion to its Portable Document Format, for publishers who wanted to control the spread of copyrighted files. In 2001, ElcomSoft released the Advanced eBook Processor, a program that could convert an eBook into a PDF, thus removing all the copyright controls on the file.

Adobe told ElcomSoft to cease and desist, and also enlisted the help of the FBI. That July, the feds tracked down ElcomSoft programmer Dmitry Sklyarov as he was preparing to speak at DefCon in Las Vegas, and arrested him for a criminal violation of the DMCA. If convicted, Sklyarov faced up to five years in prison and fines of up to $2.25 million. After the EFF raised hell and began organizing a boycott, Adobe agreed not to press charges against Sklyarov, in exchange for his testimony against ElcomSoft.

ElcomSoft tried to use another First Amendment defense: that the DMCA is unconstitutionally vague, in contrast to the previous finding that it was narrowly tailored. The district court rejected this defense in U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111 (N.D. Cal. 2002), stating that the statute was very clear on what it banned, and repeating much of the logic used by the court against Eric Corley.

Anticircumvention vs. the After-Market

One unintended consequence of the anticircumvention law was a flurry of litigation involving producers of after market accessories for electronic devices. Two cases decided in 2004 made it clear that the DMCA would not cover such anticircumvention claims.

The first case involved printer cartridges. Lexmark embedded a code in its printers so that the printers would only work with a properly coded (and godawful expensive) Lexmark cartridge. Another company reverse engineered the code so that its print cartridges would work in Lexmark printers. Lexmark got a preliminary injunction to halt the sale of the after-market cartridges, but the Sixth Circuit reversed the injunction in Lexmark Intl. v. Static Control Components, 381 F.3d 1178 (2004). Their reasoning: this wasn't an encryption system, and Static Control had the right to circumvent it even if it was an encryption system.

The other case involved the lockout code on a garage door opener. This case ended up in the Federal Circuit, which ruled that the buyers of garage doors were free to reverse engineer the code on their garage door opener, since otherwise they couldn't open their own garage. Chamberlain v. Skylink Technologies, 381 F.3d 1178 (2004).

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