Section
1201 of the Digital Millennium Copyright Act of 1998
§ 1201. Circumvention of copyright protection systems
(a) Violations Regarding Circumvention of Technological Measures.—
(1)
(A) No person shall circumvent a technological measure that effectively
controls access to a work protected under this title. The prohibition
contained in the preceding sentence shall take effect at the end of the
2-year period beginning on the date of the enactment of this chapter.
(B) The prohibition contained in subparagraph (A) shall not apply to
persons who are users of a copyrighted work which is in a particular
class of works, if such persons are, or are likely to be in the
succeeding 3-year period, adversely affected by virtue of such
prohibition in their ability to make noninfringing uses of that
particular class of works under this title, as determined under
subparagraph (C).
(C) During the 2-year period described in subparagraph (A), and during
each succeeding 3-year period, the Librarian of Congress, upon the
recommendation of the Register of Copyrights, who shall consult with
the Assistant Secretary for Communications and Information of the
Department of Commerce and report and comment on his or her views in
making such recommendation, shall make the determination in a
rulemaking proceeding for purposes of subparagraph (B) of whether
persons who are users of a copyrighted work are, or are likely to be in
the succeeding 3-year period, adversely affected by the prohibition
under subparagraph (A) in their ability to make noninfringing uses
under this title of a particular class of copyrighted works. In
conducting such rulemaking, the Librarian shall examine—
(i) the availability for use of copyrighted works;
(ii) the availability for use of works for nonprofit archival,
preservation, and educational purposes;
(iii) the impact that the prohibition on the circumvention of
technological measures applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research;
(iv) the effect of circumvention of technological measures on the
market for or value of copyrighted works; and
(v) such other factors as the Librarian considers appropriate.
(D) The Librarian shall publish any class of copyrighted works for
which the Librarian has determined, pursuant to the rulemaking
conducted under subparagraph (C), that noninfringing uses by persons
who are users of a copyrighted work are, or are likely to be, adversely
affected, and the prohibition contained in subparagraph (A) shall not
apply to such users with respect to such class of works for the ensuing
3-year period.
(E) Neither the exception under subparagraph (B) from the applicability
of the prohibition contained in subparagraph (A), nor any determination
made in a rulemaking conducted under subparagraph (C), may be used as a
defense in any action to enforce any provision of this title other than
this paragraph.
(2) No person shall manufacture, import, offer to the public, provide,
or otherwise traffic in any technology, product, service, device,
component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing
a technological measure that effectively controls access to a work
protected under this title;
(B) has only limited commercially significant purpose or use other than
to circumvent a technological measure that effectively controls access
to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that
person with that person’s knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title.
(3) As used in this subsection—
(A) to “circumvent a technological measure” 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; and
(B) a technological measure “effectively controls access to a work” if
the measure, 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.
(b) Additional Violations.—
(1) No person shall manufacture, import, offer to the public, provide,
or otherwise traffic in any technology, product, service, device,
component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively
protects a right of a copyright owner under this title in a work or a
portion thereof;
(B) has only limited commercially significant purpose or use other than
to circumvent protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in a
work or a portion thereof; or
(C) is marketed by that person or another acting in concert with that
person with that person’s knowledge for use in circumventing protection
afforded by a technological measure that effectively protects a right
of a copyright owner under this title in a work or a portion thereof.
(2) As used in this subsection—
(A) to “circumvent protection afforded by a technological measure”
means avoiding, bypassing, removing, deactivating, or otherwise
impairing a technological measure; and
(B) a technological measure “effectively protects a right of a
copyright owner under this title” if the measure, in the ordinary
course of its operation, prevents, restricts, or otherwise limits the
exercise of a right of a copyright owner under this title.
(c) Other Rights, Etc., Not Affected.—(1) Nothing in this section shall
affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.
(2) Nothing in this section shall enlarge or diminish vicarious or
contributory liability for copyright infringement in connection with
any technology, product, service, device, component, or part thereof.
(3) Nothing in this section shall require that the design of, or design
and selection of parts and components for, a consumer electronics,
telecommunications, or computing product provide for a response to any
particular technological measure, so long as such part or component, or
the product in which such part or component is integrated, does not
otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
(4) Nothing in this section shall enlarge or diminish any rights of
free speech or the press for activities using consumer electronics,
telecommunications, or computing products.
(d) Exemption for Nonprofit Libraries, Archives, and Educational
Institutions.—
(1) A nonprofit library, archives, or educational institution which
gains access to a commercially exploited copyrighted work solely in
order to make a good faith determination of whether to acquire a copy
of that work for the sole purpose of engaging in conduct permitted
under this title shall not be in violation of subsection (a)(1)(A). A
copy of a work to which access has been gained under this paragraph—
(A) may not be retained longer than necessary to make such good faith
determination; and
(B) may not be used for any other purpose.
(2) The exemption made available under paragraph (1) shall only apply
with respect to a work when an identical copy of that work is not
reasonably available in another form.
(3) A nonprofit library, archives, or educational institution that
willfully for the purpose of commercial advantage or financial gain
violates paragraph (1)—
(A) shall, for the first offense, be subject to the civil remedies
under section 1203; and
(B) shall, for repeated or subsequent offenses, in addition to the
civil remedies under section 1203, forfeit the exemption provided under
paragraph (1).
(4) This subsection may not be used as a defense to a claim under
subsection (a)(2) or (b), nor may this subsection permit a nonprofit
library, archives, or educational institution to manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, component, or part thereof, which circumvents a
technological measure.
(5) In order for a library or archives to qualify for the exemption
under this subsection, the collections of that library or archives
shall be—
(A) open to the public; or
(B) available not only to researchers affiliated with the library or
archives or with the institution of which it is a part, but also to
other persons doing research in a specialized field.
(e) Law Enforcement, Intelligence, and Other Government Activities.—
This section does not prohibit any lawfully authorized investigative,
protective, information security, or intelligence activity of an
officer, agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting pursuant to a
contract with the United States, a State, or a political subdivision of
a State. For purposes of this subsection, the term “information
security” means activities carried out in order to identify and address
the vulnerabilities of a government computer, computer system, or
computer network.
(f) Reverse Engineering.—
(1) Notwithstanding the provisions of subsection (a)(1)(A), a person
who has lawfully obtained the right to use a copy of a computer program
may circumvent a technological measure that effectively controls access
to a particular portion of that program for the sole purpose of
identifying and analyzing those elements of the program that are
necessary to achieve interoperability of an independently created
computer program with other programs, and that have not previously been
readily available to the person engaging in the circumvention, to the
extent any such acts of identification and analysis do not constitute
infringement under this title.
(2) Notwithstanding the provisions of subsections (a)(2) and (b), a
person may develop and employ technological means to circumvent a
technological measure, or to circumvent protection afforded by a
technological measure, in order to enable the identification and
analysis under paragraph (1), or for the purpose of enabling
interoperability of an independently created computer program with
other programs, if such means are necessary to achieve such
interoperability, to the extent that doing so does not constitute
infringement under this title.
(3) The information acquired through the acts permitted under paragraph
(1), and the means permitted under paragraph (2), may be made available
to others if the person referred to in paragraph (1) or (2), as the
case may be, provides such information or means solely for the purpose
of enabling interoperability of an independently created computer
program with other programs, and to the extent that doing so does not
constitute infringement under this title or violate applicable law
other than this section.
(4) For purposes of this subsection, the term “interoperability” means
the ability of computer programs to exchange information, and of such
programs mutually to use the information which has been exchanged.
(g) Encryption Research.—
(1) Definitions.— For purposes of this subsection—
(A) the term “encryption research” means activities necessary to
identify and analyze flaws and vulnerabilities of encryption
technologies applied to copyrighted works, if these activities are
conducted to advance the state of knowledge in the field of encryption
technology or to assist in the development of encryption products; and
(B) the term “encryption technology” means the scrambling and
descrambling of information using mathematical formulas or algorithms.
(2) Permissible acts of encryption research.— Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure as
applied to a copy, phonorecord, performance, or display of a published
work in the course of an act of good faith encryption research if—
(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;
(B) such act is necessary to conduct such encryption research;
(C) the person made a good faith effort to obtain authorization before
the circumvention; and
(D) such act does not constitute infringement under this title or a
violation of applicable law other than this section, including section
1030 of title 18 and those provisions of title 18 amended by the
Computer Fraud and Abuse Act of 1986.
(3) Factors in determining exemption.— In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include—
(A) whether the information derived from the encryption research was
disseminated, and if so, whether it was disseminated in a manner
reasonably calculated to advance the state of knowledge or development
of encryption technology, versus whether it was disseminated in a
manner that facilitates infringement under this title or a violation of
applicable law other than this section, including a violation of
privacy or breach of security;
(B) whether the person is engaged in a legitimate course of study, is
employed, or is appropriately trained or experienced, in the field of
encryption technology; and
(C) whether the person provides the copyright owner of the work to
which the technological measure is applied with notice of the findings
and documentation of the research, and the time when such notice is
provided.
(4) Use of technological means for research activities.—
Notwithstanding the provisions of subsection (a)(2), it is not a
violation of that subsection for a person to—
(A) develop and employ technological means to circumvent a
technological measure for the sole purpose of that person performing
the acts of good faith encryption research described in paragraph (2);
and
(B) provide the technological means to another person with whom he or
she is working collaboratively for the purpose of conducting the acts
of good faith encryption research described in paragraph (2) or for the
purpose of having that other person verify his or her acts of good
faith encryption research described in paragraph (2).
(5) Report to congress.— Not later than 1 year after the date of the
enactment of this chapter, the Register of Copyrights and the Assistant
Secretary for Communications and Information of the Department of
Commerce shall jointly report to the Congress on the effect this
subsection has had on—
(A) encryption research and the development of encryption technology;
(B) the adequacy and effectiveness of technological measures designed
to protect copyrighted works; and
(C) protection of copyright owners against the unauthorized access to
their encrypted copyrighted works.
The report shall include legislative recommendations, if any.
(h) Exceptions Regarding Minors.— In applying subsection (a) to a
component or part, the court may consider the necessity for its
intended and actual incorporation in a technology, product, service, or
device, which—
(1) does not itself violate the provisions of this title; and
(2) has the sole purpose to prevent the access of minors to material on
the Internet.
(i) Protection of Personally Identifying Information.—
(1) Circumvention permitted.— Notwithstanding the provisions of
subsection (a)(1)(A), it is not a violation of that subsection for a
person to circumvent a technological measure that effectively controls
access to a work protected under this title, if—
(A) the technological measure, or the work it protects, contains the
capability of collecting or disseminating personally identifying
information reflecting the online activities of a natural person who
seeks to gain access to the work protected;
(B) in the normal course of its operation, the technological measure,
or the work it protects, collects or disseminates personally
identifying information about the person who seeks to gain access to
the work protected, without providing conspicuous notice of such
collection or dissemination to such person, and without providing such
person with the capability to prevent or restrict such collection or
dissemination;
(C) the act of circumvention has the sole effect of identifying and
disabling the capability described in subparagraph (A), and has no
other effect on the ability of any person to gain access to any work;
and
(D) the act of circumvention is carried out solely for the purpose of
preventing the collection or dissemination of personally identifying
information about a natural person who seeks to gain access to the work
protected, and is not in violation of any other law.
(2) Inapplicability to certain technological measures.— This subsection
does not apply to a technological measure, or a work it protects, that
does not collect or disseminate personally identifying information and
that is disclosed to a user as not having or using such capability.
(j) Security Testing.—
(1) Definition.— For purposes of this subsection, the term “security
testing” means accessing a computer, computer system, or computer
network, solely for the purpose of good faith testing, investigating,
or correcting, a security flaw or vulnerability, with the authorization
of the owner or operator of such computer, computer system, or computer
network.
(2) Permissible acts of security testing.— Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to engage in an act of security testing, if
such act does not constitute infringement under this title or a
violation of applicable law other than this section, including section
1030 of title 18 and those provisions of title 18 amended by the
Computer Fraud and Abuse Act of 1986.
(3) Factors in determining exemption.— In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include—
(A) whether the information derived from the security testing was used
solely to promote the security of the owner or operator of such
computer, computer system or computer network, or shared directly with
the developer of such computer, computer system, or computer network;
and
(B) whether the information derived from the security testing was used
or maintained in a manner that does not facilitate infringement under
this title or a violation of applicable law other than this section,
including a violation of privacy or breach of security.
(4) Use of technological means for security testing.— Notwithstanding
the provisions of subsection (a)(2), it is not a violation of that
subsection for a person to develop, produce, distribute or employ
technological means for the sole purpose of performing the acts of
security testing described in subsection (2),[1] provided such
technological means does not otherwise violate section [2] (a)(2).
(k) Certain Analog Devices and Certain Technological Measures.—
(1) Certain analog devices.—
(A) Effective 18 months after the date of the enactment of this
chapter, no person shall manufacture, import, offer to the public,
provide or otherwise traffic in any—
(i) VHS format analog video cassette recorder unless such recorder
conforms to the automatic gain control copy control technology;
(ii) 8mm format analog video cassette camcorder unless such camcorder
conforms to the automatic gain control technology;
(iii) Beta format analog video cassette recorder, unless such recorder
conforms to the automatic gain control copy control technology, except
that this requirement shall not apply until there are 1,000 Beta format
analog video cassette recorders sold in the United States in any one
calendar year after the date of the enactment of this chapter;
(iv) 8mm format analog video cassette recorder that is not an analog
video cassette camcorder, unless such recorder conforms to the
automatic gain control copy control technology, except that this
requirement shall not apply until there are 20,000 such recorders sold
in the United States in any one calendar year after the date of the
enactment of this chapter; or
(v) analog video cassette recorder that records using an NTSC format
video input and that is not otherwise covered under clauses (i) through
(iv), unless such device conforms to the automatic gain control copy
control technology.
(B) Effective on the date of the enactment of this chapter, no person
shall manufacture, import, offer to the public, provide or otherwise
traffic in—
(i) any VHS format analog video cassette recorder or any 8mm format
analog video cassette recorder if the design of the model of such
recorder has been modified after such date of enactment so that a model
of recorder that previously conformed to the automatic gain control
copy control technology no longer conforms to such technology; or
(ii) any VHS format analog video cassette recorder, or any 8mm format
analog video cassette recorder that is not an 8mm analog video cassette
camcorder, if the design of the model of such recorder has been
modified after such date of enactment so that a model of recorder that
previously conformed to the four-line colorstripe copy control
technology no longer conforms to such technology.
Manufacturers that have not previously manufactured or sold a VHS
format analog video cassette recorder, or an 8mm format analog cassette
recorder, shall be required to conform to the four-line colorstripe
copy control technology in the initial model of any such recorder
manufactured after the date of the enactment of this chapter, and
thereafter to continue conforming to the four-line colorstripe copy
control technology. For purposes of this subparagraph, an analog video
cassette recorder “conforms to” the four-line colorstripe copy control
technology if it records a signal that, when played back by the
playback function of that recorder in the normal viewing mode,
exhibits, on a reference display device, a display containing
distracting visible lines through portions of the viewable picture.
(2) Certain encoding restrictions.— No person shall apply the automatic
gain control copy control technology or colorstripe copy control
technology to prevent or limit consumer copying except such copying—
(A) of a single transmission, or specified group of transmissions, of
live events or of audiovisual works for which a member of the public
has exercised choice in selecting the transmissions, including the
content of the transmissions or the time of receipt of such
transmissions, or both, and as to which such member is charged a
separate fee for each such transmission or specified group of
transmissions;
(B) from a copy of a transmission of a live event or an audiovisual
work if such transmission is provided by a channel or service where
payment is made by a member of the public for such channel or service
in the form of a subscription fee that entitles the member of the
public to receive all of the programming contained in such channel or
service;
(C) from a physical medium containing one or more prerecorded
audiovisual works; or
(D) from a copy of a transmission described in subparagraph (A) or from
a copy made from a physical medium described in subparagraph (C).
In the event that a transmission meets both the conditions set forth in
subparagraph (A) and those set forth in subparagraph (B), the
transmission shall be treated as a transmission described in
subparagraph (A).
(3) Inapplicability.— This subsection shall not—
(A) require any analog video cassette camcorder to conform to the
automatic gain control copy control technology with respect to any
video signal received through a camera lens;
(B) apply to the manufacture, importation, offer for sale, provision
of, or other trafficking in, any professional analog video cassette
recorder; or
(C) apply to the offer for sale or provision of, or other trafficking
in, any previously owned analog video cassette recorder, if such
recorder was legally manufactured and sold when new and not
subsequently modified in violation of paragraph (1)(B).
(4) Definitions.— For purposes of this subsection:
(A) An “analog video cassette recorder” means a device that records, or
a device that includes a function that records, on electromagnetic tape
in an analog format the electronic impulses produced by the video and
audio portions of a television program, motion picture, or other form
of audiovisual work.
(B) An “analog video cassette camcorder” means an analog video cassette
recorder that contains a recording function that operates through a
camera lens and through a video input that may be connected with a
television or other video playback device.
(C) An analog video cassette recorder “conforms” to the automatic gain
control copy control technology if it—
(i) detects one or more of the elements of such technology and does not
record the motion picture or transmission protected by such technology;
or
(ii) records a signal that, when played back, exhibits a meaningfully
distorted or degraded display.
(D) The term “professional analog video cassette recorder” means an
analog video cassette recorder that is designed, manufactured,
marketed, and intended for use by a person who regularly employs such a
device for a lawful business or industrial use, including making,
performing, displaying, distributing, or transmitting copies of motion
pictures on a commercial scale.
(E) The terms “VHS format”, “8mm format”, “Beta format”, “automatic
gain control copy control technology”, “colorstripe copy control
technology”, “four-line version of the colorstripe copy control
technology”, and “NTSC” have the meanings that are commonly understood
in the consumer electronics and motion picture industries as of the
date of the enactment of this chapter.
(5) Violations.— Any violation of paragraph (1) of this subsection
shall be treated as a violation of subsection (b)(1) of this section.
Any violation of paragraph (2) of this subsection shall be deemed an
“act of circumvention” for the purposes of section 1203 (c)(3)(A) of
this chapter.