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Section 1201: A Legal Overview (2017)


Welcome to the United States Copyright Office’s
informational video on section 1201 of title 17 of the United States Code. This video will give you an overview of section
1201, including what access and copy controls are, what Section 1201’s circumvention and
trafficking rules prohibit, what permanent and temporary exemptions are available to
those prohibitions, and what is the rulemaking process for temporary exemptions. Other videos discuss the rulemaking and renewal
process in depth. Section 1201 of title 17 is part of the Digital
Millennium Copyright Act, often called the “DMCA,” which Congress enacted to further
the growth of the digital marketplace. It encourages copyright owners to provide
greater access to their works in digital formats by providing them with legal protections against
unauthorized access to their works. Section 1201 prohibits two types of activities. First, it prohibits “circumventing a technological
measure,” often called a technological protection measure or “TPM.” To circumvent a TPM means to descramble
a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove,
deactivate, or impair a TPM, without the authority of the copyright owner. Second, it prohibits “trafficking” in
certain circumvention technologies, including manufacturing, importing, offering to the
public, providing, or otherwise trafficking in certain circumvention technologies, products,
services, devices, or components. As we talk about Section 1201, it is important
to be familiar with the two different types of TPMs covered by the statute. First, “access controls” are technological
measures that, as their name suggests, prevent unauthorized access to copyrighted works. Second, “copy controls” are technological
measures that protect the exclusive rights granted to copyright owners under title 17,
such as the right to reproduce a work or perform the copyrighted work publically. Note that in some cases a single technological
measure will protect against both accessing and copying a copyrighted work. For example, the TPM that protects DVDs prevents
users from both accessing and copying the work. Section 1201(a)(1)(A) prohibits circumvention
of an access control. For example, it prohibits decrypting a Blu-Ray
disc so that you can access it on an unauthorized device or bypassing the password protection
on a music streaming service. Note that the law does not prohibit circumvention
of a copy control; but acts taken after circumvention may constitute copyright infringement. This prohibition is subject to certain permanent
exemptions (via the statute) and temporary exemptions (via a rulemaking), both discussed
later. Section 1201 also prohibits people from trafficking
in devices, software, or other technologies that can be used to circumvent either access
controls or copy controls. This prohibition is subject to certain permanent,
statutory exemptions; but the Section 1201 Rulemaking cannot grant exemptions to the
trafficking prohibitions. Only an act of Congress can grant new exemptions
to these prohibitions. In short, unless a permanent, statutory exemptions
applies, you cannot traffic in an access control or a copy control. To summarize, section 1201 generally prohibits
trafficking in technologies used to circumvent either access or copy controls. Section 1201 also generally prohibits circumventing
access controls, but does not prohibit circumventing copy controls. But if someone circumvented a copy control
to reproduce a work, that act may constitute copyright infringement. There are two ways to benefit from an exemption
(or exception) to the prohibition against circumvention. The first way is to use one of the permanent
exemptions, found in the law already. You can find these
exemptions in section 1201(d) through (j) of title 17. It is important to note that the permanent
exemptions apply only to the specific circumstances as defined in the statute. The exemptions cover circumstances involving:
nonprofit libraries, archives, and educational institutions; law enforcement, intelligence,
and other government activities; reverse engineering; encryption research; exceptions regarding
minors; protection of personally identifying information; and security testing. A few of these exemptions also allow some
trafficking in access and copy controls. The second way to benefit from an exemption
is by requesting a temporary exemption. These exemptions are created through a rulemaking
that takes place every three years, and take a little over a year to complete. Three government agencies take part in the
exemption process. The Copyright Office conducts a public rulemaking
and drafts recommendations to the Librarian after consulting with the National Telecommunications
and Information Administration, or NTIA within the Department of Commerce. NTIA consults with Copyright Office during
the rulemaking. Finally, the Librarian of Congress adopts
a final rule containing the exemptions. Information on current temporary exemptions
can be found on the Copyright Office website at www. copyright.gov/1201. If you want to circumvent the TPM protecting
a copyrighted work, consider the following steps. First, ask does the TPM protect only against
unauthorized copying or other infringements? If the answer is yes, then no exemption is
needed. But consider whether your action would constitute
copyright infringement. Also, remember that TPMs are often used to
protect against both copying and accessing the work. If the TPM is protecting an access control,
next consider whether a permanent exemption applies. Though these exemptions are specific to the
circumstances as defined by the statute, if your use is consistent with those permissions
and restrictions, you are free to circumvent the TPM. If a permanent exemption does not apply, consider
whether an existing temporary exemption covers your need. If it does, then you can circumvent the TPM
for the term of the temporary exemption, consistent with the permissions and restrictions found
in the regulations. Finally, if no permanent or existing temporary
exemption applies, consider requesting a new temporary exemption in the next triennial
rulemaking. Announcements for the triennial rulemaking
will be posted in the Federal Register, in the Copyright Office’s email notification
system, called NewsNet, and on the Copyright Office’s section 1201 webpage. The United States Copyright Office is providing
general information about section 1201 of the Copyright Act and its rulemaking proceeding. By law, the Office cannot provide legal advice
to the public.

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