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Question: What does it mean to distribute circumvention tools?
Answer: Section 1201(a)(2) defines distribution as the "manufacture, import, offer to the public, provide, or otherwise traffic" of circumvention tools. This definition can be interpreted extremely broadly as evident in the court's analysis in the DVD encryption Universal v. Corley case. In its decision, the court considered not only making the source code of a program for free a type of distribution, but also found that merely linking to a web site containing illegal tools can constitute "trafficking."
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Question: How is the First Amendment affected by the DMCA?
Answer: The tension between the DMCA and the First Amendment is at the heart of several ongoing lawsuits. [Felten v. RIAA; Universal v. Corley] The mere posting of a link to a computer program that can be used to circumvent technical protection measures was held to be a violation of the DMCA. [Universal v. Corley (2d Ciruit cite)] The Recording Industry Association of America used the threat of a DMCA action to silence a professor whose research paper discussed circumvention of a technical protection measure. The professor subsequently mounted a legal challenge to the DMCA on First Amendment grounds and presented his paper. While courts in both of these cases have found in favor of the copyright industries, these cases are being appealed and the state of the law is yet to be determined.
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Question: What is a circumvention tool?
Answer: The prohibited tools under the DMCA are the programs which are primarily designed or produced for the purpose of circumvention of an access [1201(2)(a)] or copy control [1201(b)(1)(A)] mechanism. These programs can come in various forms including products, services, devices, or components. The DMCA includes in its definition of circumvention tools that these devices have limited commercially significant purposes other than circumvention or are marketed to be used for circumvention [1201(2)(B-C)], 1201(b)(1)(B-C)]. Congress intended the circumvention device bans to be analogous to laws that specifically prohibit the manufacture or distribution of descrambler boxes that allow access to cable television and satellite services without payment. However, the broad definition of circumvention tools in the DMCA creates numerous situations in which non-infringing uses of copyrighted works are prohibited as well merely because the technology necessary to engage in those legitimate uses is illegal under the circumvention device ban.
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Question: What does circumvention mean?
Answer: Circumvention, according to Section 1201(a)(3)(A), means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." While the full scope of activities and practices that would fall under this definition has not yet been examined by the courts, any act of undoing a "lock" or "block" in a digital system may well be considered circumvention.
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Question: What may be copyrighted?
Answer:
In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods
of operation, concepts, principles, or discoveries: they only protect physical
representations. 17
U.S.C. ? 102(b). Anything unrecorded is not copyrightable, in as
much as it is not "fixed;" for example, dances and improvisations
themselves are not copyrightable: only visual recordings or written descriptions
of them are. Say I go to a jazz concert and listen to a soloist's improvisation.
If I have the musical equivalent of a photgraphic memory, I may be able
to reproduce that improvised solo in my own concert on the following night.
If that solo exists nowhere but my memory (i.e. the original concert was
not recorded) I may play it with impunity, because it is not "fixed"
and therefore not copyrightable. But, if the original concert was recorded
(e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred
from playing my version of the solo. Even a bootleg recording (for which
the recorder can be punished under section 1101 of the copyright act) qualifies
for copyright protection: a work need not be formally published in order
to be "fixed;" it need only be saved in a tangible form. 17
U.S.C. ? 104.
The originality requirement of 17
U.S.C. ?102 demands that a work, in order to be copyrigted, be
independently created by the author. In order to be original, a work need
not necessarily have novelty, artistic merit, truth, or lawful content.
For example, a replica of a painting in the public domain may not be novel,
but it is copyrightable. An item of sculpture designed to be used as a pipe
for smoking marijuana may not be designed for legal ends, but it is copyrightable.
A false biography is copyrightable, although it may well also be cause for
defamation litigation.
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Question: What are technological protection measures?
Answer: Technological protection systems are already in place in DVDs, eBooks, video game consoles, robotic toys, Internet streaming, and password-protected sections of web sites. The fact that a digital protection may be really weak and easy to circumvent has not prevented courts from applying this law to punish those who bypass them.
The DMCA defines an access control mechanism as a measure which "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." [1201(a)(3)(B)] An access control is a technology, like a password or encryption that controls who or what is able to interact with the copyrighted work. It is a violation of the DMCA to circumvent access controls, but it is also a violation to provide tools to others that circumvent access controls (including selling, distributing free of charge, and possibly even linking to a site with such technology ? or even the source code).
The DMCA defines a copy control mechanism as a measure which, "in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner." [1201(b)(2)(B)]. Technological systems designed to protect against copyright infringement control whether the work can be copied, how many copies can be made, how long you can have possession of the work, etc. It is a violation of the DMCA to provide tools to others that circumvent copy controls [1201(b)], but it is not a violation of the DMCA to engage in the act of circumventing copy controls. Rather, the provision serves to buttress prohibitions against infringing activities of traditional copyright law.
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Question: What rights are protected by copyright law?
Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are: (1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right. The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright. Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases. Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement. The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.
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Question: What is penalty of perjury?
Answer: Perjury is the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. Perjury is a crime because the witness has sworn to tell the truth and, for the credibility of the court, witness testimony must be relied on as being truthful. The rules for perjury apply when a person has made a statement under penalty of perjury, even if the person has not been sworn or affirmed as a witness before an appropriate official.
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