Advanced Copyright Law on the Internet

Based on these terse and confusing rulings, the court affirmed summary judgment in
favor of the plaintiffs.^1016

(vi) Sony Computer Entertainment America v. Divineo

In Sony Computer Entertainment America, Inc. v. Divineo,^1017 the court ruled that
downstream lawful or fair uses of a circumvention device, including use to exercise Section
1201(f) rights, did not relieve the defendant from liability for trafficking in such devices under
the DMCA. For a discussion of the details of the facts and rulings of the court, see Section
II.G.1(b)(3) above.

(8) Encryption Research

Section 1201(g) provides that it is not a violation of the regulations prohibiting
circumventing a technological measure if such circumvention is done as an act of good faith
“encryption research.” “Encryption research” is defined as “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.” “Encryption technology” is
defined as “the scrambling and descrambling of information using mathematical formulas or
algorithms.” Sections 1201(g)(2)(C) and (D) require, however, that the person have made a
good faith effort to obtain authorization before the circumvention, and that such acts not
otherwise constitute a copyright infringement or violate other applicable law. Section 1201(g)(5)
required that a report be generated to Congress on encryption technologies, with legislative
recommendations (if any), not later than one year after enactment of the bill.

(9) Protection of Minors

Section 1201(h) provides that a court, in applying the prohibitions of Section 1201(a)
against the manufacture or trafficking in a component or part designed to circumvent
technological measures, may consider the necessity of such component or part for its intended
and actual incorporation into a product whose sole purpose is to prevent the access of minors to
material on the Internet.^1018

(10) Protection of Personally Identifying Information

Section 1201(i) provides that it is not a violation of the Section 1201(a)(1)(A) prohibition
on circumventing a technological measure if such measure, or the work it protects, is capable of
collecting or disseminating personally identifying information reflecting the online activities of a

(^1016) Id.
(^1017) 547 F. Supp. 2d 957 (N.D. Cal. 2006).
(^1018) An earlier version of H.R. 2281 would have expanded this exception to also allow a parent to circumvent a
technological measure controlling access to a test or evaluation of that parent’s minor child’s abilities by a
nonprofit educational institution if the parent attempted to obtain authorization before the circumvention and the
circumvention was necessary to obtain a copy of the test or evaluation.