Subparagraph (a)(1)(A) forbids circumvention of "a technological measure that effectively controls access to [copyrighted works]." There is no requirement in subparagraph (a)(1)(A) that the access controls be reasonable, appropriate, or even intentional; any arbitrary access control for copyrighted materials of any sort is granted legal reinforcement. Furthermore, otherwise legitimate and beneficial uses of copyrighted material which are made technically difficult or impractical by such access controls are thus legally stymied as well, except as are excepted elsewhere in the DMCA. Note that this subparagraph does not take effect until two years after enactment, which would nominally be in the fall of 2000.
Note also that this subparagraph quite clearly exceeds the Constitutional authority Congress has to protect copyrights, because the access controls are granted legal protection whether or not they have anything to do with protecting copyrighted material against infringement. It has been speculated that this is a so-called "paracopyright" which would be justified under the commerce clause instead, which, if successful, would throw decades of carefully balanced intellectual property legislation and case law in this country into chaos.
This subparagraph makes a bit more sense if you think of the case of cable TV service, in which the entire business model is vulnerable to theft of service if access controls are violated. But the language used is so broad as to apply to any conceivable service or material containing copyrighted material which contains access controls, whether or not copyright infringement and theft of service are even plausible concerns.
Subparagraphs (a)(1)(B, C, D, and E) establish a review process for determining the exceptions and applicability of (a)(1)(A) above. However, subparagraph (E) explicitly states that the review process cannot ameliorate the effects of other provisions of the DMCA (including the crucial subsections (a)(2) and (b)(1) below).
Subsection (a)(2) prohibits making any utility or device available to the public which is primarily intended to aid circumvention of access controls as discussed in (a)(1) above.
This subsection is much worse than it seems. The exceptions and review process of (a)(1)(B through E) do not apply to this subsection, and even worse, this subsection took effect immediately!
In theory, consumers would still free to personally circumvent access controls in ways which are found to be acceptable by the review process mentioned above. But the outlawing of legal circumvention aids will likely make circumvention of all but the most superficial access controls impractically complex and tedious. This effectively nullifies the effects of the review process and the exceptions in (a)(1), as it will be far easier to prosecute the creators and distributors of circumvention aids than it ever would have been to prosecute individual consumers who engage in circumvention.
There are some indications that Congress thought this paragraph would be used primarily to fight "black boxes" that some people use to gain unauthorized access to cable programming. But the MPAA clearly had other ideas in mind; not surprisingly, this is the paragraph being primarily used by the MPAA in its lawsuits in New York and Connecticut.
Subsection (b)(1) prohibits making any utility or device available
to the public which is primarily intended to aid circumvention of technological
measures which
But this subsection is not without its problems. Even an access control which is designed to protect a legitimate right of a copyright holder may do so in an unnecessarily restrictive way, thereby trampling on the rights and abilities of legitimate users of the copyrighted material. Moreover, a measure (such as DVD Region Coding) which is claimed to reduce copyright infringement may in actuality be relatively useless for its stated purpose and instead be primarily intended to let the copyright holder gain an unfair advantage over its customers.
In order to restrict legal protection to only those access controls which are truly intended to reduce infringement, a party bringing a case under this subsection should be required to prove all of the following:
that the access control is effective at protecting specific rights of copyright holders against infringement;
that the infringements against which the access control is effective are ongoing and have a significant detrimental economic effect on the copyright holder; and
that the access control keeps restrictions on the fair use and rights of legitimate users to the minimum practical level.
Subsections (c), (d), and (e) provide a number of exceptions and clarifications of subsections (a) and (b). However, none of these exceptions do anything to weaken the ban on circumvention aids. Hence, normal consumers are still just as vulnerable to access controls which eliminate their "fair use" abilities and which prevent them from exercising their rights such as free speech.
Subsection (f) grants an exemption permitting reverse engineering to subsections (a) and (b) above, for the extremely narrow purpose of bypassing access controls in a legally obtained computer program in order to study it in order to create a separate, interoperable program. This is certainly a helpful provision, but it only applies to the development of software, not to hardware, and not to the separate circumvention aids which would be needed to restore lost "fair use" or free speech abilities of normal consumers. It might be of some help in the particular case of developing a DVD player for Linux, depending on the interpretation of a number of terms and clauses.
Subsection (g) grants an exemption to subsection (a) only, for the very narrowly defined case of encryption research. The usefulness of this exception is virtually nil, as strong encryption is not readily circumvented, and weaker, circumventable encryption is of little practical or academic interest to most encryption researchers.
Subparagraph (g)(5) requires an already tardy "Report to congress" to be issued on the effects of Subsection (g). As academically interesting strong encryption is not generally used for copyright protection, this report is likely to be fairly irrelevant unless it considers the many other issues threatened by the rest of the DMCA.
Subsection (h) is a vague suggestion that it is legitimate to implement access controls which prevent minors from accessing material on the Internet. This does not appear to have any discernable legal effect.
Subsection (i) provides an exemption to subsection (a)(1) only, in a very narrow case where the consumer's privacy is being invaded by the access control and/or the copyrighted material.
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Original-Seite: A Protester's Guild to the DMCA
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