We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."
But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.
The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?
Although the United States has consistently interpreted section 1201 as creating a cause of action separate and independent from copyright infringement, courts construing the statute to date have divided over its relationship to the traditional rights of copyright owners. There currently is a circuit split as to whether a violation of the access‐control provisions under section 1201(a) requires a “nexus” to infringement—i.e., that the circumvention be done for the purpose of, or otherwise relate to, infringing an exclusive right under section 106 of the Copyright Act. This issue has particular significance in the context of copyrighted computer programs embedded in everyday consumer products.
In 2004, the Federal Circuit held in Chamberlain Group, Inc. v. Skylink Technologies, Inc. that there must be a “reasonable relationship” between the access gained by the circumvention and the protections conferred by section 106. Chamberlain’s garage door openers contained copyrighted software controlling operation of the motor. The software included a “rolling code,” which prevented the system from activating unless it received a signal from an authorized transmitter. Chamberlain alleged that Skylink’s manufacture and sale of “universal transmitters,” which circumvented the rolling code and accessed the copyrighted software, violated the anti‐trafficking provisions of section 1201(a)(2). The court, however, rejected that claim, holding that section 1201 did not create a new property right, but rather, “introduce[d] new grounds for liability in the context of the unauthorized access of copyrighted material.” The court further stated that “circumvention is not a new form of infringement but rather a new violation prohibiting actions or products that facilitate infringement.” The court also expressed policy concerns, including the view that without an infringement nexus requirement, section 1201(a) would result in anticompetitive conduct unrelated to copyright concerns. The court ultimately held that the Copyright Act granted consumers “the right to use the copy of Chamberlain’s embedded software that they purchased” and, therefore, in the absence of copyright infringement or facilitating copyright infringement, the defendant could not be liable for a section 1201(a)(2) trafficking violation.
In 2010, the Fifth Circuit in MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc., relied on Chamberlain to conclude that “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” The United States, however, urged rehearing on the ground that that construction was “inconsistent with the text, structure, and legislative history of the DMCA.” Such a reading, the United States argued, “threatens to frustrate Congress’s purpose in section 1201(a)(1), which was to provide a federal prohibition against bypassing passwords, encryption, and other technologies that regulate access to a copyrighted work in circumstances in which the copyright owner would not otherwise have a remedy under the Copyright Act.” The court subsequently withdrew its opinion and substituted an opinion omitting the challenged portion of the original.
Later that year, the Ninth Circuit expressly declined to follow Chamberlain and instead rejected a nexus requirement as “contrary to the plain language of the statute.” In MDY Industries, LLC v. Blizzard Entertainment, Inc., the court held MDY liable under section 1201(a)(2) for trafficking in technology in the form of a self‐playing bot, which was designed to circumvent a technological control on a video game sold by Blizzard. In rejecting the reasoning of Chamberlain, the Ninth Circuit looked to both the statutory text and its legislative history. Among other textual considerations, the court noted that section 1201(a) refers to technological measures protecting access to “a work protected under this title,” while section 1201(b) refers to measures protecting “a right of a copyright owner under this title.” The court read this distinction to indicate that Congress intended section 1201(a) to “extend a new form of protection, i.e., the right to prevent circumvention of access controls, broadly to . . . copyrighted works.” Section 1201(b), meanwhile, was intended “to reinforce copyright owners’ traditional exclusive rights under § 106 by granting them an additional cause of action against those who traffic in circumventing devices that facilitate infringement.”
So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.
So, of course, that's not at all what the Copyright Office decided. Instead, it argues that there shouldn't be such a "nexus" requirement, because it might upset Hollywood to have less control. I mean, that's not the phrase it actually uses, but that's exactly what it's saying here:
The Copyright Office shares the concern that section 1201(a)’s protections for access controls have the potential to implicate activities far outside the traditional scope of copyright law. The Office does not, however, believe enacting an infringement nexus requirement to be advisable, as it could severely weaken the right of copyright owners to exercise meaningful control over the terms of access to their works online—a right that both Congress and the Executive Branch have properly recognized as essential to the development of the digital marketplace for creative content
If you don't live in the copyright world, this statement may not seem like a big deal, but it's actually a massive and hugely troubling admission. It's the Copyright Office saying that the point of anti-circumvention should be about giving copyright holders more control over digital marketplaces and not about preventing infringement. Of course, that's not what Hollywood has always claimed in the past. They always insist the reason they need anti-circumvention provisions all over the place is to stop infringement. But everyone has always assumed it's truly because they want more control and leverage over digital marketplaces. And here you have the Copyright Office admitting, right up front, that, sure, these provisions are about giving Hollywood extra control and not about stopping infringement.
The Copyright Office tries to justify this by arguing that (for example) bypassing the password protection on a Netflix or Spotify account might violate 1201, but wouldn't infringe on an underlying Section 106 right -- and thus 1201 without a nexus requirement is necessary to enable more Netflix or Spotify like markets:
In particular, Congress sought to facilitate the development of online content delivery platforms in which the consumer pays for access to copyrighted material rather than for possession of a copy. Section 1201(a) reflects Congress’ understanding that such models will succeed only if copyright owners have the legal right to prohibit persons from evading electronic paywalls or other technical measures used to limit access to users who satisfy the rightsholder’s specified terms.
But... this is not a copyright concern. That's a business model concern. If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law.
If Congress truly wants to protect Hollywood from people sharing their Netflix passwords, there are other ways to do it without trying to loop it into copyright law -- and 1201 is a part of copyright law. It shouldn't then be abused for completely non-copyright purposes. Having an underlying nexus to copyright is the only sane way for the law to actually be related to the fundamental rights under copyright law. But here, the Copyright Office is arguing that Hollywood should get non-copyright rights of control over digital marketplaces, just because it thinks that's good for Hollywood. And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.
Section 1201 Full Report