Is the DMCA Going Far in Protecting Technological Measures?

Examination of the Educational Exemption to Circumvention of Technological Protection Measures By Rami Olwan

Technology plays an important role in our daily lives. Every day our life, education and business are based on the use and advancement of technology. We can not now live normally and complete our work without seeking the assistance of technology. Laws tried from early time to cope up with technology, and for that purpose many rules have been put in place to deal with the legal issues posed by the use of technology. The advances of technology can best be described as staggering. The most notable changes that transformed our daily lives in all respect have been the advancement in digital technologies and the internet. Computers and the internet particularly offer great opportunities to humans to store, share and exchange ideas with other humans across the globe. Unfortunately, the internet has not only been used for permitted purposes, but also been used to infringe copyrighted work and engage in illegal behaviors. With the growth of technological means of disseminating materials over the internet, copyright owners are worried of their inability to control their work, and for that purpose, businesses have developed and are still developing, technological measures aimed at protecting copyrighted works against unauthorized and illegal uses1. On the other hand hackers and computer wizards have also created their own ways of breaking technological measures used to protect copyrighted work. These new developments have affected everything including the copyright system. Accordingly, various provisions have been and continue to be introduced into national laws providing remedies for copyright owners where technological measures are

See, J.A.L Sterling, World Copyright law, 555 (2003)


circumvented, and in some cases providing that such activates constitute criminal offences2. With the introduction of “anti-circumvention” rules, copyright laws have changed and many scholars argues that copyright laws are going far in protecting copyrighted work beyond the purpose of the copyright system3 that aim to make a balance between protecting the interests of the copyright holders and allowing the public to use copyrighted work and advance human race. This paper will try to examine and study some of the criticism addressed to the DMCA, and other policy questions that is important to the development of copyright laws. It is obvious that the subject of the research paper is extremely broad, and no single article or research can address all the legal issues raised in the DMCA. It is also important to note that technological protection measures4 is a complicated subject that touches upon many issues not only related to copyright, but other areas of laws including privacy, consumer protection, freedom of expression and others. To focus as much as possible, and to examine the subject in depth, I will not examine the DMCA in general nor explore its treatment of technological protection measures, I will alternatively concentrate on one of the exemptions offered in the DMCA to the circumvention of

id See for example Lawrence Lessig, “Free Culture, How Big Media Uses Technology and Law to Lock Down Culture and Control Creativity”, available at , last visited on April 11, 2007). 4 Technological protection measures (TPMs) are techniques such as encryption, watermarking and copy restrictions that all enforce conditions upon users of digital works. The EU Copyright Directive 2001/29/EC in chapter III defines technological measure as “any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject- matter, which are not authorized by the right holder of any of any copyright or any right related to copyright as provided by law or the sui generis right. See also, Ian Brown, “The Evolution of AntiCircumvention Law”, IRLC, vol 2, No 3 239-260- (2006).



technological measures, and particularly the one related to educational institutions, but before doing that a general introduction is needed. The paper is therefore divided into two parts. In part I of the paper, I will discuss and focus on the DMCA, the various exemptions from anti-circumventions violations, and American related case law that deals with this matter. In part II, I will provide my own analysis, and particularly I will concentrate on the exemption provided for educational institutions. I will examine and analysis to what extent it correspond with the general work and purpose of educational institutions.

I. Digital Millennium Copyright Act I will discuss under this heading the American position concerning technological protection measures in the DMCA, and I will deal particularly with the following: A. History of DMCA

It is suffice to say that all started with the adoption of the Copyright treaty in 1996 by the World Intellectual Property Organization (WIPO). According to article 11 of the WIPO Copyright Treaty (WCT), “contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law”.

Article 18 of the WIPO Performance and Phonograms Treaty (WPPT) also contain a similar article that state as follows “contracting parties have to provide adequate


legal protection and affective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights, and to restrict acts in respect of their performances or phonograms which are not authorized by the performers or the producers of phonograms concerned or permitted by law”. To comply with the said WIPO Treaties, both the European Union, and the United States enacted very similar provisions to deal with the technological protection measures. In 1998, The United States implemented the Digital Millennium Copyright ACT (DMCA), while some later years, Europe enacted the Directive on the Harmonization of Certain Aspects of Copyright and Related Rights5 in the Information Society6 (Copyright Directive 2001/29/EC). I will discuss below the main sections of the DMCA that deal with technological protection measures or anti-circumvention. B. Relevant Sections of the DMCA Before adoption of the DMCA, there were two main positions in the US in connection with technological protection measures. The first position is the position of

Article 6 of the Directive provides as follows “1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned, carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective. 2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any affective technological measures”. For an explanation of the European perspective, see, Kamiel J. Koleman “the protection of technological measures vs. the copyright limitation”, available at, (last visited on April 8, 2007).


Nicola Lucchi, “Intellectual property Rights Digital Media: A comparative Analysis of Legal Protection, technological Measures and New Business Models under EU and US. Laws, 53 Buffalo L.Rev. 7 (2005).


Hollywood, and the second one is of Silicon Valley. Hollywood and its allies wanted a fierce and broad anti-circumvention legislation to protect the interests of the copyright owners and businesses. On the other hand, the Silicon Valley and their allies opposed this broad legislation because of deleterious effects it would have on their ability to engage in lawful reverse engineering, computer security testing, and encryption research7. The Digital Millennium Copy Right Act (DMCA) was enacted on October, 1998, and it was said that the primarily purpose of the enactment of the Act was to implement certain provisions of WCT and WPPT Treaties8. Also, it was said the law was a compromise between the two extreme views providing civil and criminal remedies for circumvention of technological measures on the one hand and giving exemption for different parties who qualify under the Act. Two interesting questions can be asked, whether it was important to the US to enact the DMCA to be in conformity with its treaty obligations in the WPT and WPPT? Secondly, whether the DMCA is one sided in favor of copyright owners on the account of the public good or whether it is really as claimed to be a balanced Act ? It is argued that the DMCA was not enacted to implement the US treaty obligations and this because the US even before adopting the DMCA had several provisions to protect technological measures9.

Pamela Samuelson, “ Intellectual Property And the Digital Economy: Why the Anti Circumvention Regulations Need to be Revised” available at (last visited on April 12, 2007). 8 Sheldon W.Halpern, “Fundamentals of United States Intellectual Property Law”, Kluwer Publisher, 169 (1999). 99 See for example the famous Supreme Court decision in Sony- Betamax Case where the court rules that if the only substantial use of a technology- and presumably also a services – is to aid infringement copyright owners concerned about infringing uses can stop its manufacture and sale. In addition, the US has a number of other laws that regulate specific kinds of infringement – enabling technologies, including one that protects the integrity of serial copy management system chips in digital audiotape machines. See “Pamela



A carefully examination of the language of the WCT and WPPT articles 11 and 18 reveals that they are of general nature, and they do not provide any specific guidelines in how countries should go about in implementing their obligation under the treaties, Furthermore, the matter is left to the country to determine how it should implement these provisions. Section 1201 deals mainly with two aspects 1) acts which circumvent technological measures effectively controlling access to protected works (section 1201 (a) (1)), and 2) trafficking in products, services and devices designed or produced for the purpose of circumvention technological measures controlling access to copyright protected work (section 1201 (a) (2)), or circumvention of effective technological measures protecting any of the rights in a copyright protected work (section 1201 (b)). Basically the DMCA distinguishes between two main measures used by the copyright owner and these are: measures that control initial access to the work, and measures that prevent subsequent copying from a lawfully acquired copy10. Violation of the anti-circumvention provision is subject to civil and criminal penalties11. Accordingly, I should ask, how much power does the DMCA offers to the copyright owner who uses technological protection measures to prevent access to material available in the public domain? Can the public circumvent this technology to use the work available in the public domain? Will they be caught under the DMCA? Does the DMCA offer any kind of safe guards to the public in that regard? Does the copyright owner has

Samuelson and John Browning, Confab Clips Copyright Cartel”, available at (last visited on April 12, 2007). 10 See Robert A Gorman, Jane C. Ginsburg, Copyright Cases and Materials, seventh edition, 2006 p 946 11 See section 1204, and “DMCA section 1201 Anti- Circumvention Rule Making”, available at (last visited on April 10, 2007).


the right to prevent access to the work where there is an access or copy control lock on recording and a user has a right to copy or otherwise use the material in recording ? I will answer and touch upon these question in my analysis below.

C. Exemptions in the DMCA After reading the relevant sections of the DMCA, it is obvious that they are broad ,and they might have an effect on the use of copyrighted work for future development. For that reason, the US legislator has felt it necessary to limit the technological protection measures that control access to copyrighted work, because an overbroad right to control access to technological measure protected works may unduly limit public access and therefore be detrimental to society12. This is the theory that the legislators has kept in mind when enacting the DMCA, and drafting the relevant sections on technological protection measures, whether the legislator has succeeded in implementing this is another issue that needs further consideration. Section 1201 is not absolute, but provides for seven exemptions to the prohibition on circumvention and circumvention devices13. Some of these exemptions permit the circumvention of access and copy controls for limited purposes, others allow for the limited distribution of circumvention tools in particular circumstances. These exemptions are as follows: 1) Libraries, archives, and educational institutions for acquisition purposes14; 2) Law enforcement and intelligence gathering activities15; 3) Reverse engineering in order to develop interoperable programs16;
Id at 220 See Marshall Leaffer, Understanding copyright, Lexis Nexis, (2005) 14 [1201(d)] 15 [1201(e)]
13 12


4) Encryption Research17; 5) Protecting minors from material on the Internet18; 6) Protecting the privacy of personally identifying information19; 7) Security Testing20 Section 1201 (d) provides an exemption for non-profit libraries, archives, and educational institutions to gain access to commercially exploited copyrighted works solely to make a good faith determination of whether to acquire the work. The library must be open to the public or to non-affiliated researchers21. The exemption applies only if a qualifying institution cannot obtain a copy of the work by other means, presumably in a non- encrypted form22. The copy of the work may not be retained longer than necessary to make such good faith determination and not be used for any other purpose23. In addition to these seven exemptions, the Library of Congress is required every three years to exempt the circumvention of measures that prevent the "fair use" of copyrighted works24. The rulemaking proceedings conducted by the Copyright Office are supposed to document whether noninfringing uses of particular kinds of copyrighted works are hampered by the prohibition. After the Copyright Office makes its recommendations, the Library of Congress can create "classes of works" that users may

16 17




[1201(i)] 20 [1201(j)] 21 [1201 (D) (5) (A)] 22 [1201 (D)] 23 [1201 (D) (1) (B)] 24 [1201(a)(1)(B-E)]


access through circumvention without obtaining authorization from the copyright owner.25 In the spring of 2000, the Copyright Office instituted its first terminal review of the DMCA26. The Copyright Office sought to assess whether the conduct ban on circumvention was actually diminishing the ability of individuals to make lawful uses of protected works. In its restricted domain, the Copyright Office permitted access circumvention only for 1) compilations of lists of websites blocked by filtering software, and 2) literary works. The Copyright Office also made another review in October 2003 by exempting four new uses two exempted from the anti-circumvention prohibition. (1) “Compilations

consisting of lists of websites blocked by filtering software applications, (2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.”, (3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access and (4) Literary works distributed in eBook format27. On November 22, 2006, the Librarian of Congress, James H. Billington, announced also six new exemptions from the prohibition against circumvention of technological protection measures that control access to copyright works, as provided in the DMCA.

[1201(a) (1)(B)] and see, Frequently Asked Questions (and Answers) about Ant circumvention (DMCA), available at (last visited on April 11, 2007). 25 See Michael A Einhorn, “Media, technology and Copyright”, Edward Elgar, 64 (2004). 26 See Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, available at , last visited on April 12, 2007). 27 Id



Six exemptions are the most granted during a single rulemaking session. The exemptions went into effect on November 27, 2006 and will continue through October 27, 2009. The first exemption allows film professors to break the CSS copyright protection technology found in most DVDs to create compilations for use in the classroom. The second exemption deals with computer obsolescence, and allows copy controls to be circumvented for computer software and video games that require machines that are no longer available. This exemption was granted for the third time, and is limited to the “preservation or archival reproduction of published digital works by a library or archive.” In its fourth exemption, the Copyright Office authorized the circumvention of access controls for eBooks to enable blind users to use them with read-aloud software or screen readers. Under the fifth exemption, cell phone users are authorized to break software locks on their phones to enable their use with competing carriers. The sixth and final exemption allows researchers to test copy-protected CDs in an effort to find and correct security flaws and vulnerabilities in programs and databases protected by access control mechanism that malfunction in some fashion28. E. American Case Law It is important to understand the case law that relate to the DMCA, and specially the exemptions to the circumvention of technological measures since it will allow us to determine to what extent courts have interpreted the relevant sections of the Act narrowly or broadly. Broad interpretation of the sections can prove detrimental to the originally conceived purpose of the legislator, raising new and more complicated thorny issues not imagined when the Act was drafted and enacted.



There are not many cases that relate to exemptions, and there no specific cases that deal with the exemption given to educational institutions, but there are several important cases that relate to the DMCA and especially to section 1201. One of these is the case of Lexmark Intl Inc. v. Static Control Components Inc, the defendant relied on the anti –traffking provision in the DMCA, and specially 1201 (a) (2). The court decided that the plaintiff’s argument does not hold merit, and the defendant is therefore guilty of copyright infringement and violation of the technological measures of section 1201 (a) (2). In Universal City Studios Inc.v. Corely and anor. A judgment was issued against the operator of a website for making the program DeCSS available through his website in violation of the “trafficking” ban on circumvention devices. Corely appealed and the U.S Court of Appeals dismissed the appeal. In dismissing the appeal, the court made the following reasoning behind the decision. 1) circumvention of encryption technology protecting copyrighted materials is not permitted even when the materials will be put to “ fair uses” exempt from copyright liability 2) The protection afforded to copyright owners in the DMCA is not to be construed narrowly 3) A person who buys a DVD is not permitted to circumvent encryption technology to support use on multiple platforms and lastly 3) it has been suggested that this case does not really address the fair use exception and, in any event, the fair use doctrine has never been held out as a guarantee of access to copy a work , nor a guarantee that a person claiming fair use can copy the work in question according to his or her preferred technique or, fit the matter, in the format of the original29.

Ian Kerr, Ph.D, Alana Maurushat, Christian S. Tacit, and Nelligan O'Brien Payne, “Technological Protection Measures Part 1”, Trends in Technological Protection Measures and Circumvention



In United States vs. Elcom Ltd and Sklyrov, on August 28, 2001, a grand jury charged Skylyriov with five counts under the DMCA since he managed to remove the technological protection measures from eBooks. Although the defendant was charged he was released from Custody and allowed to return to Russia as part of the agreement between him and the U.S government.30

II. Analysis There are different views by scholars on the relevant sections and exemptions of the DMCA, and to what extent they offer balanced rights to copyright owners and the public. Ian Brown argues that “... the USA has continued to promote broad restrictions with narrow exemptions on circumvention acts and devices via fee- trade agreements, modeled on its own Digital Millennium Copyright Act as a specific implementation of the WIPO treaties”31 Professor Ginsburg on the other hand argues in favor of the technological protection measures, she mentioned that “the US experience to date indicated that legal protection for technological measures has helped foster new business models that make work available to the public at a variety of price points and enjoyment options without

convention”, available at, (last visited on April 12, 2007). 30 id 31 The US has entered into several trade agreements with various countries (Jordan, Singapore, Chile, Guatemala, Dominican Republic, Morocco, Bahrain and others) that require the protection of technological measures. It is interesting to note that these agreements are tougher than national intellectual property laws of the county that signed the agreement with the US. See Gwen Hinze, “ Seven Lessons from a Comparison of the Technological Protection Measure Provisions of the FTAA, the DMCA, and recent Bilateral Free Trade Agreements”, available at, (last visited on April 12, 2007)


endangering the “digital lockup” and other copyright owner abuses that many had feared”.32 Various copyright professors sent a letter to US Congress stating that “the enactment of the anti- circumvention provisions would represent an unprecedented departure into the zone of what might be called paracopyright – an uncharted new domain of legislative provisions designed to strengthen copyright protection by regulating conduct which traditionally has fallen outside the regulatory sphere of intellectual property law33” Another commentator goes far in declaring the DMCA is invalid and unconstitutional, and that is because the commerce clause fails to provide the constitutional authority and that the Act impedes the progress of are and science.34 Professor Smulson on the other hand does not share that opinion and argues that “unless the anti-device provisions of the DMCA are modified, either by narrow judicial interpretation or by legislative amendments, they are likely to have harmful effects on competition and innovation in the high technology sector”35. She provided her comments in 1999 when there was no relevant case law that deals with the DMCA, and the Copyright Office has not yet assigned exemptions. The question, I should ask whether the position has changed after we have witnessed a number of cases interpreting the anticircumvention sections and the adoption of various exemptions by the Copyright Office?

Jane C. Ginsburg, “Legal Protection of technological measures Protecting Work of Authorship: International Obligations and the US Experience”, available at, (last visited on April 11, 2007). 33 Section 2.5 of the information Infrastructure Task Force, Intellectual Property and National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights, Washington: Library of Congress 1995 (“white paper”) quoted in Hugenholtz , 34 Thomas A. Mitchell, “Honoring David Shapiro: Note: Copyright, Congress and Constitutionality: How the Digital Millennium Copyright Act Goes Too far”, 79 Notre Dame L. Rev. 2115. 35 Samuelson Supra note 7.



To what extent are the exemptions useful to the public? Do they really balance the interests of the copyright owners and the public? I will analysis below the exemption offered to academic institutions. Basically there are two conditions for the libraries and educational institutions to fulfill in order for them to circumvent technological protection measures and these are (1) the library must access only for a reasonable time and in good faith in order to make a decision about acquiring access and (2) the access so acquired is not used for commercial advantage. It is not clear what is considered as a reasonable time, furthermore it is not really clear what constitute good faith. Good faith can be interpreted in many ways, and educational institutions can always raise the argument that they have circumvented the technological measure for educational purposes and fair use is allowed of course under the Act36. The second condition may not be needed since using the work for commercial advantage does not correspond with the general purpose of academic institutions. The exemption to educational institutions as a whole may be useless and of no value and this is because usually publishers and producers typically provide access to material for a limited time period so that a library may make a determination about acquiring access to the work37. So do we really need this clause in the first place? Section 1201 (c) (1) of the DMCA provides as follows “ Nothing in this section shall effect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title”


See Section 107, “imitations on exclusive rights of the Copyright Act 1976 as amended”. See Laura N. Gasaway, Anti- Circumvention: A View From Librarians and Educators, available at , (last visited on April 11, 2007).



It not clear how this section relate to the exemption of the librarian and educational institutions? Control of access given to the copyright owner can eliminate fair use of a work and yet fair use seems to be preserved by the statute. What is the purpose of including this section? Does it mean that access controls will not be permitted to eliminate fair use? How libraries and educational institution exercise fair use privilege mentioned in the above mentioned section? Generally speaking the exemption is narrow, and this is because it allows the academic institutions to circumvent an access control technological protection measure only to determine whether they want to acquire the protected work and they are not allowed to do that for any other purpose such as to have a copy of the work for public use. It is not clear what is the real intention behind narrowing the exemption offered to educational institutions in view of the public benefit they offer to in general. Society itself has some interests in the availability of copyrighted works to the public, and little consideration has been given to the importance of this matter in the Act itself. Some European countries appear to be broadly exempting libraries from their anticircumvention statute recognizing the public good that libraries perform.38 Also, the exemption for educational institutions applies only to Section 1201 (a) (1) (A) and not to section 1201 (a) (2) (B). Although it is clear that the intention of the Legislator not to allow educational institutions to offer to the public or provide technology that circumvent a technological measure, but can they manufacture and use certain technologies for their own purposes and not for the public? The Act is not totally clear and most likely they are not allowed to do that under this section.

See Laura N. Gasaway, Anti- Circumvention: A View From Librarians and Educators, available at , (last visited on April 11, 2007).



Educational institutions can not obtain the assistance of someone not working with them and they must circumvent the technological protection measure according to the Act on their own, and this may not be useful for some of the educational institutions that do not have a particular expertise and knowledge with the science of decryption and circumvention. The good thing is that section 1204 (b), excludes criminal liability for educational institutions that engage in violation of section 1201 of the Act. As for the general exemption clause given to the Copyright Office, there are some problematic aspects with the present administrative process in determining the exemption permitted to access circumvention. First, the Copyright Office has assigned exemptions based on embedded attributes of specific products without regard to the underlying consumer tastes and capabilities39. A clear look at the different exemptions provided by the Copyright Office will allow us to conclude that they are not related to each other and they are given loosely without any specific policy in mind. The Copyright Office analysis and chose is made based on the existing devices and this may be problematic that a great number of innovative uses or devices have not been emerged, and might never emerge40.

Concluding Remarks Technological protection measures in copyright law particularly in the EU Copyright Directives, and the DMCA leave unanswered question as their exact meaning and scope. One of the main purposes of copyright is to ensure that the right holders are able to obtain adequate compensation for their efforts, thus giving them the incentive to create41. The

See supra note 25 Enihorn at 56 id 41 See supra note at 220



public must use the work for advancement of intellectual creativity and this can not been done if the public can not access and use the work. Achieving the balance between these two extremes is the main purpose of having a copyright system. Copyright holders are using technology and laws to protect their rights to the fullest extent possible, and this is evidenced by the various laws that have been issued on the national and international level. The DMCA is one of the toughest laws that have been implemented so far to protect the interests of the copyright holders who are using technological measures to protect their work. This is true since it offer more protection than what is required under WPPT and WPT treaties. It was thought that including certain exemptions on circumvention of technological measures would restore the required balance between the interests of the public and copyright owners, but this actually did not happen. Exemptions brought to the front point more questions than they intended to bring when they were drafted, the Copyright Office understood the matter and this why they intervened from time to time to allow other exemptions for the general and public good. They have surely introduced good exemptions, but their work is not yet complete and they have to take into consideration the interests of the consumers and the different devices that are available in the marker now or will be available later. Accomplishing that is not an easy task since technology are developing very rapidly and what is available and used today may not be used tomorrow and consumer tastes differ substantially. So, what is the solution and what we should do in going around this problem? No specific answer, laws take different prospective, but generally speaking, we can say that overboard legal protection for technological measures can have serious implication on the copyright system, including the educational and technology sectors. To restore the balance between


the interests of the copyright owners and the rights of the public to access information that benefit society, the anti-circumvention provision should provide exemptions that are clear and minimalist at best. The exemption of educational institutions is very important and should not be restricted since this will be detrimental to the interests of the society and the general public purpose of these institutions. It will remain to be seen in the upcoming years to what extent are the laws and the courts ready to take into account the interests of the public and restore the balance that the copyright system has failed to achieve.