The Virtual Lawyer - Circumventing the Digital Millenium

by David Crocker

Published 1999-01-01    Printer-friendly version

Quietly and without much fanfare, the digital landscape has shifted beneath our feet. Although we have in the past chewed over the copyright protection of software, web content, and the liabilities of ISPs, we had to admit in the end that there were square pegs and round holes. All that has changed: in October, President Clinton signed into law the Digital Millennium Copyright Act, which provides enhanced protections for Internet content and recognizes the new place of the Internet in communications, news and information, and entertainment. The new legislation is lengthy and complex, so just this once I will dispense with the wisecracks and just stick to the facts, ma'am.

What the Deuce is Circumvention?

The Act adds an entirely new section 12 to the existing Copyright Act dealing with "circumvention" of "copyright protection systems." Such protection systems are undefined and, instead, anticipate future techniques to discouraging copying, decrypting or descrambling digital copyright content. This measure takes effect in two years. During this time, the Librarian of Congress has been directed to conduct a rulemaking proceeding to formulate legitimate exceptions to this ban.

Forget the Cable Descramblers

But the Act goes even further: it prohibits manufacturing or making available any technology, products or services used to defeat technological protection measures. Likewise, the Act prohibits manufacture or distribution of technologies used to bypass the copyright holder's own anti-copying measures. As you can see, however, an overly strict ban on technologies might prevent sale of legitimate multipurpose devices. Therefore, the ban applies only to those devices that:

1. are primarily designed or produced for the purpose of circumvention,
2. have only a limited "commercially significant purpose" other than circumvention, or
3. are marketed for use in circumvention. And, oh yeah - this part of the Act takes effect now.

Legitimate Circumvention?

You bet. Congress rightly recognized that there may be OK reasons to engage in circumvention. While the Librarian creates new rules, Congress also established a few exceptions of its own. These include:

Reverse Engineering. Software developers may circumvent protection measures incorporated in lawfully obtained software in order to identify elements necessary to achieve interoperability of the developer's program with other programs. The developer may do this only if the elements of interoperability are not otherwise obtainable and reverse engineering is otherwise permitted (and it is usually forbidden under most software licenses).

Law Enforcement and Intelligence. There had to an exception for coppers, spooks and black ops.

Encryption Research. If you're legitimately researching encryption technology (as opposed to using the Cray simply to crack your neighbor's 128-bit algorithm), then you can circumvent if:

1. you lawfully obtain the copyrighted work,
2. the circumvention is necessary for your fun, er, research,
3. you made a good faith effort to get the owner's permission to crack her stuff, and
4. circumvention is otherwise permitted under other, applicable laws.

Security Testing. If you're legitimately checking someone's security measures, then you can hack, er, circumvent his system.

Cookies. You can still disable cookies, if the cookies are used to obtain personal info about you. (God knows what you do if remote Web sites use cookies for some other purpose.) According to the law as written, you would presumably not be able to refuse cookies or delete them from your hard drive.

Minors. The congressmen were concerned that this law might prevent parents from using all technological means at their disposal to protect their children from Internet smut. So, the Act permits the manufacture and sale of technology whose sole purpose to help parents keep the Internet safe for young minds.

Roll Them VCRs

In eighteen months, analog VCRs will be required to carry copy controls that employ either an automatic gain control or colorstripe technology. Needless to say, it will be illegal to tamper with the copy controls or create software hacks or infamous "black boxes" to get around them. Balanced against these controls are the continued rights of homeowners to tape commercial broadcasts on regular networks and extended tier cable services. No copying those Blockbuster tapes or Pay-Per-View, though.

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Clarion Magazine ISSN 1718-9942