Advanced Copyright Law on the Internet

on third parties is particularly important for small software developers who do not

have the capability of performing these functions in-house. This provision

permits such sharing of information and tools.^984

Although Section 1201(f)(3) clearly contemplates an exemption for distribution to third
parties of the “technological means” referenced in Section 1201(f)(2), as well as the
“information” gleaned from reverse engineering under Section 1201(f)(1), the same issues of the
scope of “technological means” intended to be within the exemption arise as in Section
1201(f)(2). As noted, the Copyright Office seems to read Section 1201(f)(3) broadly to permit
the distribution of independently developed computer programs that circumvent the
technological protection measures of other programs in order to interoperate with such other
programs. The legislative history quoted above, however, seems to read Section 1201(f)(3) more
narrowly as directed to distribution of reverse engineering “tools” or information to third party
developers who may be hired to assist in the development of an independent computer program,
as opposed to a distribution of a competitive product into the marketplace.

These ambiguities in the scope of the Section 1201(f) exemptions will need to be
resolved over time through litigation. In addition, it is worth observing that, although Section
1201(f) provides useful exemptions, it leaves open the issue of whether circumvention of access
restrictions in order to perform reverse engineering for purposes other than interoperability, such
as error correction, is prohibited. The Copyright Office’s exemption rulemaking procedures may
afford a mechanism to further flesh out or clarify the Section 1201(f) exemptions.

Several cases have adjudicated the scope of the Section 1201(f) exemption:

(i) Universal City Studios Inc. v. Reimerdes

In Universal City Studios, Inc. v. Reimerdes,^985 discussed in further detail in Section
II.G.1(m)(4) below, the court rejected the applicability of Section 1201(f) to the defendants’
posting on their Web site of, and posting links to, a descrambling computer program known as
“DeCSS,” which circumvented the encryption of movies stored in digital form on a digital
versatile disk (“DVD”) encoded with the industry standard Content Scramble System (“CSS”).
The defendants argued that DeCSS had been created to further the development of a DVD player
that would run under the Linux operating system, as there allegedly were no Linux-compatible
players on the market at the time.^986 They further contended that DeCSS was necessary to
achieve interoperability between computers running the Linux operating system and DVDs, and
that the exception of Section 1201(f) therefore applied.^987

The court rejected this argument for several reasons. First, Section 1201(f)(3) permits
information acquired through reverse engineering to be made available to others only by the

(^984) S. Rep. No. 105-190, at 33 (1998).
(^985) 111 F. Supp. 2d 294 (S.D.N.Y. 2000).
(^986) Id. at 319.
(^987) Id. at 320.