- could be liable under Section 1201 even though they had no intent to
circumvent.^972
The paper also raised concern about broadening the standard for liability for third party
use of devices that infringe copyright owner’s rights from that of the Sony case, which imposes
liability only for sale of devices having no substantial noninfringing uses, to the prohibition
under the bill of devices that are “primarily designed or produced” for circumvention, or have
“only limited commercially significant purpose” other than circumvention, or are marketed for
use in circumvention.
(6) Exemption for Nonprofit Organizations and Law
Enforcement
Section 1201(d) sets up an exemption from the circumvention prohibitions of Section
1201(a)(1) for nonprofit libraries, archives, or educational institutions that gain 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, provided that a copy of the work is not retained longer
than necessary to make the good faith determination, is used for no other purpose, and there is
not otherwise reasonably available an identical copy of the work in another form. Section
1201(e) provides that the prohibitions of Section 1201 do not apply to lawfully authorized
investigative, protective, information security,^973 or intelligence activity of law enforcement
officers.
(7) Reverse Engineering for InteroperabilitySection 1201(f) provides three exemptions to the anti-circumvention provisions relating
to reverse engineering and interoperability:
Reverse Engineering for Interoperability of an Independently Created Computer
Program. Section 1201(f)(1) provides that, notwithstanding the prohibitions in Section
1201(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.” The language in Section 1201(f) requiring that the
reverse engineering be for the sole purpose of “identifying and analyzing those elements of the
(^972) Prepared Statement of Chris Byrne of Silicon Graphics, Inc. on Behalf of the Information Technology Industry
Council Before the House Judiciary Committee Courts and Intellectual Property Subcommittee (Wed., Sept. 17,
1997) (available from Federal News Service, 620 National Press Building, Washington, D.C. 20045, and on file
with the author). Section 1201(c)(3), discussed above, appears to be directed at least in part to addressing this
issue.
(^973) Section 1201(e) defines “information security” to mean activities carried out to identify and address the
vulnerabilities of a government computer, computer system, or computer network.