Advanced Copyright Law on the Internet

(4) No Requirements With Respect to Design of a Product

Section 1201(c)(3) provides that nothing in the bills “shall require that the design of, or
design and selection of parts and components for, a consumer electronics, telecommunications,
or computing product provide for a response to any particular technological measure ....”

(5) Other Rights Not Affected

Sections 1201(c)(1), (2), and (4) provide that Section 1201 is not intended to affect rights,
remedies, limitations, or defenses (including fair use) to copyright infringement; or to enlarge or
diminish vicarious or contributory liability in connection with any technology or product; or to
enlarge or diminish any rights of free speech of the press for activities using consumer
electronics, telecommunications, or computing products.

Notwithstanding these provisions, groups such as the Digital Future Coalition (DFC)
have criticized the approach of the DMCA. In a position paper dated August 1997,^969 the DFC
argued that Section 1201 would effectively negate fair use rights, because it imposes liability for
“circumvention” even when the purpose of the activity is permitted by the copyright act (such as
reverse engineering or other activities that otherwise constitute fair use). The DFC also argued
that Section 1201 would outlaw legitimate devices with substantial noninfringing uses,
effectively overruling the Supreme Court’s decision in Sony Corp. v Universal City Studios.^970

The DFC argued that the savings clauses of Section 1201(c) are inadequate because
“while Section 1201 will not as a formal matter restrict existing limitations and exceptions to
copyright, it will as a practical matter preclude the exercise of these limitations and exceptions
by preventing the manufacture and use of the technologies necessary for their existence. Nor
would the savings clause protect individuals who gain ‘access’ to works in violation of
1201(a)(1), even if they do so for entirely lawful purposes.”^971

Another position paper filed on behalf of the Information Technology Industry Council
raised concern that Section 1201 will impose liability too broadly in view of the broad definition
of “circumvention”:

Thus, if a device does not respond to a technological protection measure that is

intended to control copying, which in some cases may be a simple 1 or 0 in

header information included with the digital content, the device may be construed

as avoiding, bypassing, deactivating or impairing that measure.... Companies

that make devices that do not respond to copy flags – because they don’t know

about the flags or because of technological difficulties associated with complying

(^969) The position paper may be found at http://www.ari.net/dfc/docs/stwip.htm.
(^970) 464 U.S. 417 (1984).
(^971) Position paper at 3.