James Nguyen, a partner at Foley & Lardner's Los Angeles office, has an article on the anti-circumvention provisions of the DMCA in this month's LA County Bar Assoc.'s Los Angeles Lawyer: Code Breaking. The article is a pretty good, if brief, summary of the anti-circumvention provisions of the law to this point. However, there is one paragraph that is fairly misleading in its description of sections 1201(a) (access controls) and 1201(b) (copy controls):
For example, in applying Section 1201 to circumstances involving a circumvention device that breaks DVD encryption codes and permits copying of DVDs, a company that manufactures and sells the device would violate the trafficking provisions of Section 1201(b) (and possibly also Section 1201(a)(2), depending on what the device does). However, if a consumer uses that device to copy a DVD, that conduct is lawful if: 1) the consumer lawfully gained access to the DVD (such as by purchasing it at a retail store), and 2) the consumer pleads and proves a traditional infringement defense (such as a defense of fair use based on making one copy for personal use).
This language is confusing. Yes, if a device is only a 1201(b) device, then actual circumvention (as opposed to distribution of the device) is legal, though one may still be guilty of copyright infringement. However, Reimerdes
held that CSS, the encryption used by DVDs, was both a copy protection device (1201(b)) and
access control device (1201(a)). Under Reimerdes
, it is unclear how any device that circumvents CSS for purposes of 1201(b) does not also meet the requirements of 1201(a). Heck, it is unclear how a device that circumvents any commonly used encryption scheme is not both a 1201(a) and 1201(b) device. For all practical purposes, 1201(a) has swallowed 1201(b). If there is a case that has found a device that circumvents encryption to only violate 1201(b) and not also violate 1201(a), I am unaware of it.
This means that even if one has lawfully acquired a DVD, such as by purchase at your local Wal-Mart, circumventing CSS in order to view the DVD on an unauthorized player puts one in violation of 1201(a)(1). Unfortunately, there is no defense of fair use to 1201(a)(1). Although all you did was view your lawfully acquired DVD, you are still subject to civil liability.
Nguyen's description of how the anti-circumvention provisions of the DMCA operate with regard to DVDs sounds almost reasonable, but is misleading. Remember, playing a DVD on an unauthorized player is illegal. A point I wish had been made more forcefully at the DMCRA hearings.
via Bag and Baggage