[free-sklyarov] Legal technicality question

[Wendy Seltzer]

At 01:04 PM 07/22/2001 -0500, Dave Sherohman wrote:
>On Sat, Jul 21, 2001 at 07:04:36PM -0700, Sam Gray wrote:
> > Is personal use of a circumvention device illegal under the DMCA, or is it
> > merely "trafficking" that's now a crime?  In other words, if I write my own
> > software to rip the content from an eBook to exercise my fair use rights,
> > can legal action be taken against me?  Or is it just when I try to tell
> > someone else about it?
>
>IANAL, etc, but my understanding is that, while they couldn't manage to
>ban the _use_ of a circumvention device, creation or aquisition of a
>circumvention device were both banned.  So you're perfectly free to use
>such a program, but you can't get one without violating DMCA.

That's right.  There are two main parts to the anticircumvention section 
(17 U.S.C. 1201), one banning circumvention of "access control" measures, 
and the other banning circumvention of "copy" protections.  1201(a), 
regarding access controls, bans both the trafficking in circumvention 
devices and their use, while 1201(b), regarding copy controls, bans only 
the trafficking in devices.
<http://eon.law.harvard.edu/openlaw/DVD/1201.html>

The reasoning, as I understand it, was that this was supposed to 
accommodate fair use, the copying/display/performance of a copyrighted work 
that is not a violation of a copyright owner's rights.  Besides, 
traditional copyright infringement was punishable pre-DMCA whether or not 
it involved circumvention.

Of course the absence of a use ban on devices to circumvent copy controls 
doesn't help non-programmers who can't build circumvention mechanisms 
themselves, so we've set up a privileged class of those who may make fair 
use.  Even more insidious, even those who can make the copying devices may 
still be sued for breaking "access controls," as the law does not make a 
clear distinction.  In the Universal v. Reimerdes (DeCSS) case, the 
district court found that use of an "unauthorized" DVD player was 
circumvention of access controls.  I'm a bit surprised to see only 1201(b) 
(copy control) charged in the Sklyarov complaint.

--Wendy
--
Wendy Seltzer -- wendy at seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html