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CITE

    17 USC Sec. 1201                                            01/05/2009

EXPCITE

    TITLE 17 - COPYRIGHTS
    CHAPTER 12 - COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

HEAD

    Sec. 1201. Circumvention of copyright protection systems

STATUTE

      (a) Violations Regarding Circumvention of Technological Measures.
    - (1)(A) No person shall circumvent a technological measure that
    effectively controls access to a work protected under this title.
    The prohibition contained in the preceding sentence shall take
    effect at the end of the 2-year period beginning on the date of the
    enactment of this chapter.
      (B) The prohibition contained in subparagraph (A) shall not apply
    to persons who are users of a copyrighted work which is in a
    particular class of works, if such persons are, or are likely to be
    in the succeeding 3-year period, adversely affected by virtue of
    such prohibition in their ability to make noninfringing uses of
    that particular class of works under this title, as determined
    under subparagraph (C).
      (C) During the 2-year period described in subparagraph (A), and
    during each succeeding 3-year period, the Librarian of Congress,
    upon the recommendation of the Register of Copyrights, who shall
    consult with the Assistant Secretary for Communications and
    Information of the Department of Commerce and report and comment on
    his or her views in making such recommendation, shall make the
    determination in a rulemaking proceeding for purposes of
    subparagraph (B) of whether persons who are users of a copyrighted
    work are, or are likely to be in the succeeding 3-year period,
    adversely affected by the prohibition under subparagraph (A) in
    their ability to make noninfringing uses under this title of a
    particular class of copyrighted works. In conducting such
    rulemaking, the Librarian shall examine -
        (i) the availability for use of copyrighted works;
        (ii) the availability for use of works for nonprofit archival,
      preservation, and educational purposes;
        (iii) the impact that the prohibition on the circumvention of
      technological measures applied to copyrighted works has on
      criticism, comment, news reporting, teaching, scholarship, or
      research;
        (iv) the effect of circumvention of technological measures on
      the market for or value of copyrighted works; and
        (v) such other factors as the Librarian considers appropriate.
      (D) The Librarian shall publish any class of copyrighted works
    for which the Librarian has determined, pursuant to the rulemaking
    conducted under subparagraph (C), that noninfringing uses by
    persons who are users of a copyrighted work are, or are likely to
    be, adversely affected, and the prohibition contained in
    subparagraph (A) shall not apply to such users with respect to such
    class of works for the ensuing 3-year period.
      (E) Neither the exception under subparagraph (B) from the
    applicability of the prohibition contained in subparagraph (A), nor
    any determination made in a rulemaking conducted under subparagraph
    (C), may be used as a defense in any action to enforce any
    provision of this title other than this paragraph.
      (2) No person shall manufacture, import, offer to the public,
    provide, or otherwise traffic in any technology, product, service,
    device, component, or part thereof, that -
        (A) is primarily designed or produced for the purpose of
      circumventing a technological measure that effectively controls
      access to a work protected under this title;
        (B) has only limited commercially significant purpose or use
      other than to circumvent a technological measure that effectively
      controls access to a work protected under this title; or
        (C) is marketed by that person or another acting in concert
      with that person with that person's knowledge for use in
      circumventing a technological measure that effectively controls
      access to a work protected under this title.
      (3) As used in this subsection -
        (A) to "circumvent a technological measure" means to descramble
      a scrambled work, to decrypt an encrypted work, or otherwise to
      avoid, bypass, remove, deactivate, or impair a technological
      measure, without the authority of the copyright owner; and
        (B) a technological measure "effectively controls access to a
      work" if the measure, in the ordinary course of its operation,
      requires the application of information, or a process or a
      treatment, with the authority of the copyright owner, to gain
      access to the work.
      (b) Additional Violations. - (1) No person shall manufacture,
    import, offer to the public, provide, or otherwise traffic in any
    technology, product, service, device, component, or part thereof,
    that -
        (A) is 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;
        (B) has only limited commercially significant purpose or use
      other than to circumvent 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; or
        (C) is marketed by that person or another acting in concert
      with that person with that person's knowledge for use in
      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.
      (2) As used in this subsection -
        (A) to "circumvent protection afforded by a technological
      measure" means avoiding, bypassing, removing, deactivating, or
      otherwise impairing a technological measure; and
        (B) a technological measure "effectively protects a right of a
      copyright owner under this title" if the measure, in the ordinary
      course of its operation, prevents, restricts, or otherwise limits
      the exercise of a right of a copyright owner under this title.
      (c) Other Rights, Etc., Not Affected. - (1) Nothing in this
    section shall affect rights, remedies, limitations, or defenses to
    copyright infringement, including fair use, under this title.
      (2) Nothing in this section shall enlarge or diminish vicarious
    or contributory liability for copyright infringement in connection
    with any technology, product, service, device, component, or part
    thereof.
      (3) Nothing in this section 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, so long as such
    part or component, or the product in which such part or component
    is integrated, does not otherwise fall within the prohibitions of
    subsection (a)(2) or (b)(1).
      (4) Nothing in this section shall enlarge or diminish any rights
    of free speech or the press for activities using consumer
    electronics, telecommunications, or computing products.
      (d) Exemption for Nonprofit Libraries, Archives, and Educational
    Institutions. - (1) A nonprofit library, archives, or educational
    institution which gains access to a commercially exploited
    copyrighted work solely in order to make a good faith determination
    of whether to acquire a copy of that work for the sole purpose of
    engaging in conduct permitted under this title shall not be in
    violation of subsection (a)(1)(A). A copy of a work to which access
    has been gained under this paragraph -
        (A) may not be retained longer than necessary to make such good
      faith determination; and
        (B) may not be used for any other purpose.
      (2) The exemption made available under paragraph (1) shall only
    apply with respect to a work when an identical copy of that work is
    not reasonably available in another form.
      (3) A nonprofit library, archives, or educational institution
    that willfully for the purpose of commercial advantage or financial
    gain violates paragraph (1) -
        (A) shall, for the first offense, be subject to the civil
      remedies under section 1203; and
        (B) shall, for repeated or subsequent offenses, in addition to
      the civil remedies under section 1203, forfeit the exemption
      provided under paragraph (1).
      (4) This subsection may not be used as a defense to a claim under
    subsection (a)(2) or (b), nor may this subsection permit a
    nonprofit library, archives, or educational institution to
    manufacture, import, offer to the public, provide, or otherwise
    traffic in any technology, product, service, component, or part
    thereof, which circumvents a technological measure.
      (5) In order for a library or archives to qualify for the
    exemption under this subsection, the collections of that library or
    archives shall be -
        (A) open to the public; or
        (B) available not only to researchers affiliated with the
      library or archives or with the institution of which it is a
      part, but also to other persons doing research in a specialized
      field.
      (e) Law Enforcement, Intelligence, and Other Government
    Activities. - This section does not prohibit any lawfully
    authorized investigative, protective, information security, or
    intelligence activity of an officer, agent, or employee of the
    United States, a State, or a political subdivision of a State, or a
    person acting pursuant to a contract with the United States, a
    State, or a political subdivision of a State. For purposes of this
    subsection, the term "information security" means activities
    carried out in order to identify and address the vulnerabilities of
    a government computer, computer system, or computer network.
      (f) Reverse Engineering. - (1) Notwithstanding the provisions of
    subsection (a)(1)(A), a person who has lawfully obtained the right
    to use a copy of a computer program may circumvent a technological
    measure that effectively controls access to a particular portion of
    that program for the sole purpose of identifying and analyzing
    those elements of the program that are necessary to achieve
    interoperability of an independently created computer program with
    other programs, and that have not previously been readily available
    to the person engaging in the circumvention, to the extent any such
    acts of identification and analysis do not constitute infringement
    under this title.
      (2) Notwithstanding the provisions of subsections (a)(2) and (b),
    a person may develop and employ technological means to circumvent a
    technological measure, or to circumvent protection afforded by a
    technological measure, in order to enable the identification and
    analysis under paragraph (1), or for the purpose of enabling
    interoperability of an independently created computer program with
    other programs, if such means are necessary to achieve such
    interoperability, to the extent that doing so does not constitute
    infringement under this title.
      (3) The information acquired through the acts permitted under
    paragraph (1), and the means permitted under paragraph (2), may be
    made available to others if the person referred to in paragraph (1)
    or (2), as the case may be, provides such information or means
    solely for the purpose of enabling interoperability of an
    independently created computer program with other programs, and to
    the extent that doing so does not constitute infringement under
    this title or violate applicable law other than this section.
      (4) For purposes of this subsection, the term "interoperability"
    means the ability of computer programs to exchange information, and
    of such programs mutually to use the information which has been
    exchanged.
      (g) Encryption Research. -
        (1) Definitions. - For purposes of this subsection -
          (A) the term "encryption research" means 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; and
          (B) the term "encryption technology" means the scrambling and
        descrambling of information using mathematical formulas or
        algorithms.
        (2) Permissible acts of encryption research. - Notwithstanding
      the provisions of subsection (a)(1)(A), it is not a violation of
      that subsection for a person to circumvent a technological
      measure as applied to a copy, phonorecord, performance, or
      display of a published work in the course of an act of good faith
      encryption research if -
          (A) the person lawfully obtained the encrypted copy,
        phonorecord, performance, or display of the published work;
          (B) such act is necessary to conduct such encryption
        research;
          (C) the person made a good faith effort to obtain
        authorization before the circumvention; and
          (D) such act does not constitute infringement under this
        title or a violation of applicable law other than this section,
        including section 1030 of title 18 and those provisions of
        title 18 amended by the Computer Fraud and Abuse Act of 1986.
        (3) Factors in determining exemption. - In determining whether
      a person qualifies for the exemption under paragraph (2), the
      factors to be considered shall include -
          (A) whether the information derived from the encryption
        research was disseminated, and if so, whether it was
        disseminated in a manner reasonably calculated to advance the
        state of knowledge or development of encryption technology,
        versus whether it was disseminated in a manner that facilitates
        infringement under this title or a violation of applicable law
        other than this section, including a violation of privacy or
        breach of security;
          (B) whether the person is engaged in a legitimate course of
        study, is employed, or is appropriately trained or experienced,
        in the field of encryption technology; and
          (C) whether the person provides the copyright owner of the
        work to which the technological measure is applied with notice
        of the findings and documentation of the research, and the time
        when such notice is provided.
        (4) Use of technological means for research activities. -
      Notwithstanding the provisions of subsection (a)(2), it is not a
      violation of that subsection for a person to -
          (A) develop and employ technological means to circumvent a
        technological measure for the sole purpose of that person
        performing the acts of good faith encryption research described
        in paragraph (2); and
          (B) provide the technological means to another person with
        whom he or she is working collaboratively for the purpose of
        conducting the acts of good faith encryption research described
        in paragraph (2) or for the purpose of having that other person
        verify his or her acts of good faith encryption research
        described in paragraph (2).
        (5) Report to congress. - Not later than 1 year after the date
      of the enactment of this chapter, the Register of Copyrights and
      the Assistant Secretary for Communications and Information of the
      Department of Commerce shall jointly report to the Congress on
      the effect this subsection has had on -
          (A) encryption research and the development of encryption
        technology;
          (B) the adequacy and effectiveness of technological measures
        designed to protect copyrighted works; and
          (C) protection of copyright owners against the unauthorized
        access to their encrypted copyrighted works.
      The report shall include legislative recommendations, if any.
      (h) Exceptions Regarding Minors. - In applying subsection (a) to
    a component or part, the court may consider the necessity for its
    intended and actual incorporation in a technology, product,
    service, or device, which -
        (1) does not itself violate the provisions of this title; and
        (2) has the sole purpose to prevent the access of minors to
      material on the Internet.
      (i) Protection of Personally Identifying Information. -
        (1) Circumvention permitted. - Notwithstanding the provisions
      of subsection (a)(1)(A), it is not a violation of that subsection
      for a person to circumvent a technological measure that
      effectively controls access to a work protected under this title,
      if -
          (A) the technological measure, or the work it protects,
        contains the capability of collecting or disseminating
        personally identifying information reflecting the online
        activities of a natural person who seeks to gain access to the
        work protected;
          (B) in the normal course of its operation, the technological
        measure, or the work it protects, collects or disseminates
        personally identifying information about the person who seeks
        to gain access to the work protected, without providing
        conspicuous notice of such collection or dissemination to such
        person, and without providing such person with the capability
        to prevent or restrict such collection or dissemination;
          (C) the act of circumvention has the sole effect of
        identifying and disabling the capability described in
        subparagraph (A), and has no other effect on the ability of any
        person to gain access to any work; and
          (D) the act of circumvention is carried out solely for the
        purpose of preventing the collection or dissemination of
        personally identifying information about a natural person who
        seeks to gain access to the work protected, and is not in
        violation of any other law.
        (2) Inapplicability to certain technological measures. - This
      subsection does not apply to a technological measure, or a work
      it protects, that does not collect or disseminate personally
      identifying information and that is disclosed to a user as not
      having or using such capability.
      (j) Security Testing. -
        (1) Definition. - For purposes of this subsection, the term
      "security testing" means accessing a computer, computer system,
      or computer network, solely for the purpose of good faith
      testing, investigating, or correcting, a security flaw or
      vulnerability, with the authorization of the owner or operator of
      such computer, computer system, or computer network.
        (2) Permissible acts of security testing. - Notwithstanding the
      provisions of subsection (a)(1)(A), it is not a violation of that
      subsection for a person to engage in an act of security testing,
      if such act does not constitute infringement under this title or
      a violation of applicable law other than this section, including
      section 1030 of title 18 and those provisions of title 18 amended
      by the Computer Fraud and Abuse Act of 1986.
        (3) Factors in determining exemption. - In determining whether
      a person qualifies for the exemption under paragraph (2), the
      factors to be considered shall include -
          (A) whether the information derived from the security testing
        was used solely to promote the security of the owner or
        operator of such computer, computer system or computer network,
        or shared directly with the developer of such computer,
        computer system, or computer network; and
          (B) whether the information derived from the security testing
        was used or maintained in a manner that does not facilitate
        infringement under this title or a violation of applicable law
        other than this section, including a violation of privacy or
        breach of security.
        (4) Use of technological means for security testing. -
      Notwithstanding the provisions of subsection (a)(2), it is not a
      violation of that subsection for a person to develop, produce,
      distribute or employ technological means for the sole purpose of
      performing the acts of security testing described in subsection
      (2),(!1) provided such technological means does not otherwise
      violate section (!2) (a)(2).
      (k) Certain Analog Devices and Certain Technological Measures. -
        (1) Certain analog devices. -
          (A) Effective 18 months after the date of the enactment of
        this chapter, no person shall manufacture, import, offer to the
        public, provide or otherwise traffic in any -
            (i) VHS format analog video cassette recorder unless such
          recorder conforms to the automatic gain control copy control
          technology;
            (ii) 8mm format analog video cassette camcorder unless such
          camcorder conforms to the automatic gain control technology;
            (iii) Beta format analog video cassette recorder, unless
          such recorder conforms to the automatic gain control copy
          control technology, except that this requirement shall not
          apply until there are 1,000 Beta format analog video cassette
          recorders sold in the United States in any one calendar year
          after the date of the enactment of this chapter;
            (iv) 8mm format analog video cassette recorder that is not
          an analog video cassette camcorder, unless such recorder
          conforms to the automatic gain control copy control
          technology, except that this requirement shall not apply
          until there are 20,000 such recorders sold in the United
          States in any one calendar year after the date of the
          enactment of this chapter; or
            (v) analog video cassette recorder that records using an
          NTSC format video input and that is not otherwise covered
          under clauses (i) through (iv), unless such device conforms
          to the automatic gain control copy control technology.
          (B) Effective on the date of the enactment of this chapter,
        no person shall manufacture, import, offer to the public,
        provide or otherwise traffic in -
            (i) any VHS format analog video cassette recorder or any
          8mm format analog video cassette recorder if the design of
          the model of such recorder has been modified after such date
          of enactment so that a model of recorder that previously
          conformed to the automatic gain control copy control
          technology no longer conforms to such technology; or
            (ii) any VHS format analog video cassette recorder, or any
          8mm format analog video cassette recorder that is not an 8mm
          analog video cassette camcorder, if the design of the model
          of such recorder has been modified after such date of
          enactment so that a model of recorder that previously
          conformed to the four-line colorstripe copy control
          technology no longer conforms to such technology.
        Manufacturers that have not previously manufactured or sold a
        VHS format analog video cassette recorder, or an 8mm format
        analog cassette recorder, shall be required to conform to the
        four-line colorstripe copy control technology in the initial
        model of any such recorder manufactured after the date of the
        enactment of this chapter, and thereafter to continue
        conforming to the four-line colorstripe copy control
        technology. For purposes of this subparagraph, an analog video
        cassette recorder "conforms to" the four-line colorstripe copy
        control technology if it records a signal that, when played
        back by the playback function of that recorder in the normal
        viewing mode, exhibits, on a reference display device, a
        display containing distracting visible lines through portions
        of the viewable picture.
        (2) Certain encoding restrictions. - No person shall apply the
      automatic gain control copy control technology or colorstripe
      copy control technology to prevent or limit consumer copying
      except such copying -
          (A) of a single transmission, or specified group of
        transmissions, of live events or of audiovisual works for which
        a member of the public has exercised choice in selecting the
        transmissions, including the content of the transmissions or
        the time of receipt of such transmissions, or both, and as to
        which such member is charged a separate fee for each such
        transmission or specified group of transmissions;
          (B) from a copy of a transmission of a live event or an
        audiovisual work if such transmission is provided by a channel
        or service where payment is made by a member of the public for
        such channel or service in the form of a subscription fee that
        entitles the member of the public to receive all of the
        programming contained in such channel or service;
          (C) from a physical medium containing one or more prerecorded
        audiovisual works; or
          (D) from a copy of a transmission described in subparagraph
        (A) or from a copy made from a physical medium described in
        subparagraph (C).
      In the event that a transmission meets both the conditions set
      forth in subparagraph (A) and those set forth in subparagraph
      (B), the transmission shall be treated as a transmission
      described in subparagraph (A).
        (3) Inapplicability. - This subsection shall not -
          (A) require any analog video cassette camcorder to conform to
        the automatic gain control copy control technology with respect
        to any video signal received through a camera lens;
          (B) apply to the manufacture, importation, offer for sale,
        provision of, or other trafficking in, any professional analog
        video cassette recorder; or
          (C) apply to the offer for sale or provision of, or other
        trafficking in, any previously owned analog video cassette
        recorder, if such recorder was legally manufactured and sold
        when new and not subsequently modified in violation of
        paragraph (1)(B).
        (4) Definitions. - For purposes of this subsection:
          (A) An "analog video cassette recorder" means a device that
        records, or a device that includes a function that records, on
        electromagnetic tape in an analog format the electronic
        impulses produced by the video and audio portions of a
        television program, motion picture, or other form of
        audiovisual work.
          (B) An "analog video cassette camcorder" means an analog
        video cassette recorder that contains a recording function that
        operates through a camera lens and through a video input that
        may be connected with a television or other video playback
        device.
          (C) An analog video cassette recorder "conforms" to the
        automatic gain control copy control technology if it -
            (i) detects one or more of the elements of such technology
          and does not record the motion picture or transmission
          protected by such technology; or
            (ii) records a signal that, when played back, exhibits a
          meaningfully distorted or degraded display.
          (D) The term "professional analog video cassette recorder"
        means an analog video cassette recorder that is designed,
        manufactured, marketed, and intended for use by a person who
        regularly employs such a device for a lawful business or
        industrial use, including making, performing, displaying,
        distributing, or transmitting copies of motion pictures on a
        commercial scale.
          (E) The terms "VHS format", "8mm format", "Beta format",
        "automatic gain control copy control technology", "colorstripe
        copy control technology", "four-line version of the colorstripe
        copy control technology", and "NTSC" have the meanings that are
        commonly understood in the consumer electronics and motion
        picture industries as of the date of the enactment of this
        chapter.
        (5) Violations. - Any violation of paragraph (1) of this
      subsection shall be treated as a violation of subsection (b)(1)
      of this section. Any violation of paragraph (2) of this
      subsection shall be deemed an "act of circumvention" for the
      purposes of section 1203(c)(3)(A) of this chapter.

SOURCE

    (Added Pub. L. 105-304, title I, Sec. 103(a), Oct. 28, 1998, 112
    Stat. 2863; amended Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title
    V, Sec. 5006], Nov. 29, 1999, 113 Stat. 1536, 1501A-594.)

REFERENCES IN TEXT

      The date of the enactment of this chapter, referred to in
    subsecs. (a)(1)(A), (g)(5), and (k)(1), (4)(E), is the date of
    enactment of Pub. L. 105-304, which was approved Oct. 28, 1998.
      The Computer Fraud and Abuse Act of 1986, referred to in subsecs.
    (g)(2)(D) and (j)(2), is Pub. L. 99-474, Oct. 16, 1986, 100 Stat.
    1213, which amended section 1030 of Title 18, Crimes and Criminal
    Procedure, and enacted provisions set out as a note under section
    1001 of Title 18. For complete classification of this Act to the
    Code, see Short Title of 1986 Amendment note set out under section
    1001 of Title 18 and Tables.

AMENDMENTS

      1999 - Subsec. (a)(1)(C). Pub. L. 106-113 struck out "on the
    record" after "determination in a rulemaking proceeding" in first
    sentence.

FOOTNOTE

    (!1) So in original. Probably should be subsection "(a)(2),".
    (!2) So in original. Probably should be "subsection".
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