Section 1201: Technology Protection Measures
The DMCA includes provisions that make it illegal to hack technologies that copyright owners use to protect their works against infringement, such as encryption, password protection of other types of measures. These provisions are commonly referred to as the “Anti-Circumvention” provisions of the DMCA. (They are also often referred to simply by the provision number – Section 1201). Congress enacted these provisions not only to prevent piracy and other economically harmful unauthorized uses of copyrighted materials, but also to support new ways of disseminating copyrighted materials to users, and to safeguard the availability of legitimate uses of those materials.
Importantly, enforcement of the Anti-Circumvention provisions of the DMCA do not require any sort of nexus between circumvention and infringement. If someone breaks the technologies used to protect against copyright infringement the copyright owner need not prove that an infringement took place; all the owner needs to prove is that a violation of the Anti-Circumvention provisions occurred.
The Anti-Circumvention provisions apply differently depending on whether the technology at issue is intended to control access to a copyrighted work or to control one or more of the exclusive rights. If the technology is one that controls access, then the law will prohibit the act of hacking that technology as well as prohibiting the trafficking in a product or service that is primarily designed and marketed for the purpose of hacking and has no other real commercial purpose. However, if the technology only controls one or more of the exclusive rights, then the law will prohibit the trafficking in a product or service that is primarily designed and marketed for the purpose of hacking and has no other real commercial purpose, but will not prohibit the actual act of hacking itself.
The Anti-Circumvention provisions also include numerous limitations and exceptions to the scope of the prohibition. For example, certain acts of reverse engineering, encryption research, security testing etc. are beyond the reach of the prohibition. In addition, every three years the Copyright Office undertakes an investigation to determine whether it’s appropriate to create additional (temporary) exemptions that are not codified in the statute.
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