Copyright Office Admits That DMCA Is More About Giving Hollywood 'Control' Than Stopping Infringement

We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."

But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.

The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?

Although the United States has consistently interpreted section 1201 as creating a causeof action separate and independent from copyright infringement, courts construing thestatute to date have divided over its relationship to the traditional rights of copyrightowners. There currently is a circuit split as to whether a violation of the access"controlprovisions under section 1201(a) requires a "nexus" to infringement-i.e., that thecircumvention be done for the purpose of, or otherwise relate to, infringing an exclusiveright under section 106 of the Copyright Act. This issue has particular significance in thecontext of copyrighted computer programs embedded in everyday consumer products.

In 2004, the Federal Circuit held in Chamberlain Group, Inc. v. Skylink Technologies, Inc.that there must be a "reasonable relationship" between the access gained by thecircumvention and the protections conferred by section 106. Chamberlain's garagedoor openers contained copyrighted software controlling operation of the motor. Thesoftware included a "rolling code," which prevented the system from activating unless itreceived a signal from an authorized transmitter. Chamberlain alleged that Skylink'smanufacture and sale of "universal transmitters," which circumvented the rolling codeand accessed the copyrighted software, violated the anti"trafficking provisions of section1201(a)(2). The court, however, rejected that claim, holding that section 1201 did notcreate a new property right, but rather, "introduce[d] new grounds for liability in thecontext of the unauthorized access of copyrighted material." The court further statedthat "circumvention is not a new form of infringement but rather a new violationprohibiting actions or products that facilitate infringement." The court also expressedpolicy concerns, including the view that without an infringement nexus requirement,section 1201(a) would result in anticompetitive conduct unrelated to copyrightconcerns. The court ultimately held that the Copyright Act granted consumers "theright to use the copy of Chamberlain's embedded software that they purchased" and,therefore, in the absence of copyright infringement or facilitating copyrightinfringement, the defendant could not be liable for a section 1201(a)(2) traffickingviolation.

In 2010, the Fifth Circuit in MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc.,relied on Chamberlain to conclude that "[t]he DMCA prohibits only forms of access thatwould violate or impinge on the protections that the Copyright Act otherwise affordscopyright owners." The United States, however, urged rehearing on the ground thatthat construction was "inconsistent with the text, structure, and legislative history of theDMCA." Such a reading, the United States argued, "threatens to frustrate Congress'spurpose in section 1201(a)(1), which was to provide a federal prohibition againstbypassing passwords, encryption, and other technologies that regulate access to acopyrighted work in circumstances in which the copyright owner would not otherwisehave a remedy under the Copyright Act." The court subsequently withdrew itsopinion and substituted an opinion omitting the challenged portion of the original.

Later that year, the Ninth Circuit expressly declined to follow Chamberlain and insteadrejected a nexus requirement as "contrary to the plain language of the statute." InMDY Industries, LLC v. Blizzard Entertainment, Inc., the court held MDY liable undersection 1201(a)(2) for trafficking in technology in the form of a self"playing bot, whichwas designed to circumvent a technological control on a video game sold by Blizzard.In rejecting the reasoning of Chamberlain, the Ninth Circuit looked to both the statutorytext and its legislative history. Among other textual considerations, the court noted thatsection 1201(a) refers to technological measures protecting access to "a work protectedunder this title," while section 1201(b) refers to measures protecting "a right of acopyright owner under this title." The court read this distinction to indicate thatCongress intended section 1201(a) to "extend[] a new form of protection, i.e., the right toprevent circumvention of access controls, broadly to . . . copyrighted works." Section1201(b), meanwhile, was intended "to reinforce copyright owners' traditional exclusiverights under 106 by granting them an additional cause of action against those whotraffic in circumventing devices that facilitate infringement."

So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.

So, of course, that's not at all what the Copyright Office decided. Instead, it argues that there shouldn't be such a "nexus" requirement, because it might upset Hollywood to have less control. I mean, that's not the phrase it actually uses, but that's exactly what it's saying here:

The Copyright Office shares the concern that section 1201(a)'s protections for accesscontrols have the potential to implicate activities far outside the traditional scope ofcopyright law. The Office does not, however, believe enacting an infringement nexusrequirement to be advisable, as it could severely weaken the right of copyright ownersto exercise meaningful control over the terms of access to their works online-a rightthat both Congress and the Executive Branch have properly recognized as essential tothe development of the digital marketplace for creative content

If you don't live in the copyright world, this statement may not seem like a big deal, but it's actually a massive and hugely troubling admission. It's the Copyright Office saying that the point of anti-circumvention should be about giving copyright holders more control over digital marketplaces and not about preventing infringement. Of course, that's not what Hollywood has always claimed in the past. They always insist the reason they need anti-circumvention provisions all over the place is to stop infringement. But everyone has always assumed it's truly because they want more control and leverage over digital marketplaces. And here you have the Copyright Office admitting, right up front, that, sure, these provisions are about giving Hollywood extra control and not about stopping infringement.

The Copyright Office tries to justify this by arguing that (for example) bypassing the password protection on a Netflix or Spotify account might violate 1201, but wouldn't infringe on an underlying Section 106 right -- and thus 1201 without a nexus requirement is necessary to enable more Netflix or Spotify like markets:

In particular, Congress sought to facilitate thedevelopment of online content delivery platforms in which the consumer pays for accessto copyrighted material rather than for possession of a copy. Section 1201(a) reflectsCongress' understanding that such models will succeed only if copyright owners havethe legal right to prohibit persons from evading electronic paywalls or other technicalmeasures used to limit access to users who satisfy the rightsholder's specified terms.

But... this is not a copyright concern. That's a business model concern. If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law.

If Congress truly wants to protect Hollywood from people sharing their Netflix passwords, there are other ways to do it without trying to loop it into copyright law -- and 1201 is a part of copyright law. It shouldn't then be abused for completely non-copyright purposes. Having an underlying nexus to copyright is the only sane way for the law to actually be related to the fundamental rights under copyright law. But here, the Copyright Office is arguing that Hollywood should get non-copyright rights of control over digital marketplaces, just because it thinks that's good for Hollywood. And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.