Are the TPM provisions in C-32 more restrictive than those in the DMCA?

The US Fifth Circuit Court of Appeals has revised its opinion in the MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. 2010 WL 3769210 (5th.Cir. Sept. 29, 2010)  case  withdrawing entirely the discussion of whether a copyright violation is a prerequisite for a violation of DMCA Section 1201(a). Instead, it affirmed the dismissal of the DMCA claim solely on the lack of proof that any GE/PMI employee actually circumvented the access control TPM and because the DMCA TPM prohibitions do not apply to “using the software after some other party disabled the code requiring a” TPM.

The original opinion in the case was issued by the panel on July 20, 2010. However, following a petition for rehearing en banc, and treating that petition as one for a panel rehearing, the Court granted the petition in part, withdrawing a controversial portion of the ruling in which the Court had concluded that “[m]erely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision” and that  “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners”.

It was this portion of the decision which lead Prof. Geist to argue in multiple blogs that the TPM provisions of the DMCA are “far less restrictive than Bill C-32.” See, The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions, U.S. Developments Demonstrate Canada’s C-32 Digital Lock Rules More Restrictive Than DMCABill C-32: My perspective on the key Issues, and CRIA Goes To Washington:

I pointed out earlier this week in a blog posting, Separating facts from hype about C-32 that Prof. Geist made numerous errors in comparing Bill C-32 and US law with respect to TPMs. In this and another posting,  MGE v GE-what did the 5th Circuit decide about the scope of the DMCA TPM provisions and was it right?, I also argued that Prof. Geist’s conclusions about the MGE case were neither accurate nor complete. I contended that the case was inconsistent with the leading cases interpreting the DMCA, with the legislative history of the DMCA, and with the administrative practice under that statute. I argued that the MGE case did not support Prof. Geist’s categorical statement that in the US “The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners”. The Fifth Circuit, in withdrawing that portion of the decision clearly agreed.

I wasn’t the only person who took issue with the original opinion of the Fifth Circuit in the MGE case. The US government disagreed with the decision as well. To make its case, it filed an Amicus Brief on the petition for rehearing. In it, the government forcefully argued that the Court should withdraw the controversial portion of the decision because it was wrong.

The following is a summary of what the US Government had submitted to the Court:

“The United States respectfully urges the Court to grant panel rehearing and revise its opinion to omit its unnecessary discussion of the types of “access” prohibited by 17 U.S.C. § 1201(a)(1). The panel concluded that “[m]erely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. * * * The owner’s technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.”  Slip op. 6.  As we explain below, that conclusion is inconsistent with the text, structure, and legislative history of the DMCA.  The panel’s decision threatens to frustrate Congress’s purpose in section 1201(a)(1), which was to provide a federal prohibition against bypassing passwords, encryption, and other technologies that regulate access to a copyrighted work in circumstances in which the copyright owner would not otherwise have a remedy under the Copyright Act. The panel’s decision is of particular concern to the United States, moreover, because it essentially renders pointless the administrative authority that Congress granted to the Librarian of Congress under the DMCA to promulgate exemptions to Section 1201(a)(1)’s anti-circumvention prohibition for particular classes of copyrighted works. See 17 U.S.C. § 1201(a)(1)(C)…”

After quoting the relevant parts of the DMCA, the US brief went on to describe the scope of section 1201(a)(1)(A):

“The plain language of section 1201(a)(1)(A) thus restricts any unauthorized access to a copyrighted work that is protected by an access control, just as breaking-and-entering laws prohibit any access to a locked house, even if nothing inside is stolen. Nothing in the text of the statute links “access” with infringement of the underlying copyright. The phrase “protected under this title” grammatically modifies the noun “work,” not “access”; it defines the types of works to which access is prohibited, not the type of access prohibited.

Nonetheless, in the panel’s view, “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” Slip op. 6.  The panel thus held that MGE’s claim under section 1201(a)(1) failed because “MGE has not shown that bypassing its dongle infringes a right protected by the Copyright Act.” Slip op. 7. This reasoning makes the DMCA’s anti-circumvention rule essentially redundant of the Copyright Act’s substantive protections: if the “access” prohibited under section 1201(a)(1)(A) must “infringe[] a right protected by the Copyright Act,” slip op. 7, then the DMCA only prohibits what the Copyright Act already prohibits. That cannot be correct.

Indeed, the panel’s reading of the statute conflates technological access controls with infringement controls, which Congress addressed in a different section of the DMCA. Section 1201(b) of the Act prohibits trafficking in devices or services “primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.” 17 U.S.C. § 1201(b)(1)(A) (emphasis added). By construing section 1201(a)(1)(A) to encompass only forms of access that “violate or impinge on the protections that the Copyright Act otherwise affords copyright owners,” slip op. 6, the panel collapsed Congress’s distinction between access controls and infringement controls and thereby drained the DMCA’s prohibition against circumventing access controls of all independent significance.  See Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 545 (6th Cir. 2004) (distinguishing access controls from infringement controls under the DMCA); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 440-41 (2d Cir. 2001) (same).”

The US government then went on to explain why linking the access control prohibitions to acts of the infringement would undermine the strong public policy reason for protecting TPMs:

“The panel’s decision also threatens to frustrate Congress’s purposes in enacting section 1201(a)(1). The entire point of that provision was to provide a federal prohibition against bypassing passwords, encryption, and other technologies that regulate access to a copyrighted work in circumstances in which the act of obtaining access would not by itself violate the copyright laws. Congress was concerned that, absent a strong federal prohibition on circumventing such technological locks, copyright owners would be unwilling to release digital versions of their works in online marketplaces.  See, e.g., H.R. Rep. 105-551, Part II, at 23 (1998).  Congress determined that by prohibiting unauthorized access — separate from and in addition to unauthorized copying — it could give copyright owners the confidence to distribute their works in new and powerful ways (e.g., streaming video over the internet, digital “rentals” that expire after predetermined periods of time, music files playable only on certain devices, and so on).  Congress specifically sought to foster such “use-facilitating” business models by enacting section 1201…

The panel’s decision, however, would appear to allow the intentional hacking of password protections and other technological locks without penalty, provided the hacking is designed to enable what the panel called “mere use or viewing.” Yet the ability of copyright owners to exercise fine-tuned control over use and viewing — often with different prices associated with different degrees of access, such as digital movie rentals that expire after a specified period — is exactly what has enabled the proliferation of digital media products in the decade since the DMCA was enacted.”

Those policy reasons are as true today as they were when the DMCA was enacted in the US.

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