Section 1201 and Copyright Law
Posted: 4 May 2005
Congress adopted Section 1201 in 1998, as part of the Digital Millennium Copyright Act, in order to protect copyrighted works from digital piracy and unauthorized use. The section seeks to achieve that goal by outlawing circumventing technological measures (such as encryption and password protection) that protect copyrighted works and trafficking in means for circumvention.
Although its purpose is simple, Section 1201 has three separate rules in two separate subsections, and its text is notoriously impenetrable. Its complexity has allowed litigants plausibly to apply it to control aftermarket commerce in printer toner cartridges and transmitters for garage door openers.
This piece explains how Section 1201 is supposed to work, and why only a fraction of courts so far has parsed it properly. The analysis begins with a paradox of sorts: although Section 1201 was designed to protect copyrighted works, it is not part of copyright law. Beginning at that essential point, this piece discusses why Section 1201 has been so problematic, emphasizing the differences between its two key subsections. The piece concludes that copyright defenses like fair use have no application under subsection (a) but (due to differences in explicit text) may have application under subsection (b). It therefore suggests the importance of choosing the right subsection in each case and provides a simple, practical test for doing so. That test may help avoid turning trials under Section 1201 into graduate seminars in computer engineering. Finally, the piece explains why the printer toner case was correctly decided by the Sixth Circuit on appeal, while the Federal Circuit's decision in the garage-door-opener case, although correct in result, contains dangerously misleading extended dictum.
Keywords: copyright, digital, circumvention, trafficking, fair use, encryption, aftermarket, 1201
JEL Classification: K21, L12, O31, O33, O34, O38
Suggested Citation: Suggested Citation