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 Chilling Effects Clearinghouse > Anticircumvention (DMCA) > Notices > AACS licensor complains of posted key (NoticeID 7180, Printer-friendly version

AACS licensor complains of posted key

April 17, 2007


Sender Information:
Advanced Access Content System Licensing Administrator, LLC (AACS LA)
Sent by: [Private]
Proskauer Rose LLP
New York, NY, 10038, US

Recipient Information:
Google Inc.
1600 Amphitheatre
Mountain View, CA, 94043, USA

Sent via: express mail
Re: Illegal Offering of Processing Key to Circumvent AACS Copyright Protection

Dear Google Inc.

We represent Advanced Access Content System Licensing Administrator, LLC (AACS LA), developer, proprietor and licensor of the Advanced Access Content System (AACS). AACS is an integrated set of technological protection measures that controls access to and prevents unauthorized copying of copyrighted motion pictures embodied on high definition DVDs.

It is our understanding that you are providing to the public the above-identified tools and services at the above referenced URL, and are thereby providing and offering to the public a technology, product, service, device, component, or part thereof that is primarily designed, produced, or marketed for the purpose of circumventing the technological protection measures afforded by AACS (hereafter, the "circumvention offering"). Doing so constitutes a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act (the "DMCA"), 17 U.S.C.


FAQ: Questions and Answers

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Question: What are the DMCA's anti-circumvention provisions?

Answer: The Digital Millennium Copyright Act (DMCA) is the latest amendment to copyright law, which introduced a new category of copyright violations that prohibit the "circumvention" of technical locks and controls on the use of digital content and products. These anti-circumvention provisions put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works.

The DMCA contains four main provisions:

  1. a prohibition on circumventing access controls [1201(a)(1)(A)];
  2. an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)];
  3. a copyright protection circumvention device ban [1201(b)]; and,
  4. a prohibition on the removal of copyright management information (CMI) [1202(b)].

The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities.

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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

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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 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: So what is all the controversy about the DMCA?

Answer: The shift towards the distribution of copyrighted materials in digital form has been accompanied by new methods of protection. Through the use of "digital locks," technological systems behind which these copyrighted materials are protected, producers and manufacturers are able to automate fine grained control over who can access, use, and/or copy their works and under what conditions. Producers insist these "digital locks" are necessary to protect their materials from being pirated or misappropriated. But, these new technological systems, and the DMCA provisions making it a crime to bypass them, undermine individuals ability to make "fair use" of digital information, and essentially replace the negotiation of the terms of use for those products with unilateral terms dictated by copyright owners. These self-help technical protection mechanisms are generally not evident to the purchaser or user until after the sale. In some cases, producers who use these technical locks to enforce limits on access and use of their works fail to disclose the terms of use to the purchasers or licensees of their products.

The defenses and exemptions to the circumvention prohibition and circumvention device bans included in the law are fatefully narrow. As a result, the legitimate activities of scientists, software engineers, journalists, and others have been chilled. The DMCA has been used by copyright holders and the government to prevent the creation of third-party software products, silence computer scientists, and prosecute journalists who provide hypertext links to software code.

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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 development of interoperable products affected by the DMCA?

Answer: The anti-circumvention provisions may hinder innovation in information technology by limiting the ability of potential competitors to reverse engineer the technological protection system behind which the original manufacturer hides their product. Reverse engineering is a traditional method used by industry to understand how systems work and create interoperable products. While the DMCA has an exception that permits reverse engineering to create interoperable products, as discussed below, it may only permit reverse engineering for interoperability between programs, but not for the purpose of making a program available in other platforms. . A strict interpretation of the DMCA may prohibit reverse engineering, regardless of whether or not copyright infringement occurs in the process.

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Question: How is the general public affected by the DMCA?

Answer: Conspicuously missing from the exemptions provided for circumvention activities is the average consumer's right to use and explore the products and services they purchase. The only provisions aimed at consumers directly, exempt the circumvention of: a) technologies that collect personal information (the privacy exemption); and, b) technologies used to protect minors from access to certain web sites. These exemptions, like the others, are extremely narrow. For example, the privacy exemption only allows circumvention to defeat the data collection activity of the technical protection measure. If by defeating the data collection element you defeat other aspects of the technical protection measure you

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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 are the penalties for violating the DMCA's anti-circumvention provisions?

Answer: The DMCA allows for both civil remedies and criminal penalties for violations under the anti-circumvention provisions. If the violations are determined to be willful and for commercial purposes or private financial gain, the court can order significant fines and/or imprisonment.

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