Courts Struggle With Limits of DMCA Anti-Circumvention

Locks, according to an old saying, are for keeping honest people out. That doesn’t mean you shouldn’t lock your door, it just means that any sufficiently determined thief is going to be able to get in to your house, your car, your safe—or your data. It is a truism of information security that no system can be entirely secure against an attack by an opponent with unlimited resources and motivation, but on the other hand the vast majority of systems will never face that kind of attack. Good security design thus requires balancing the level of security with the level of expected risk. Beyond a certain point, there is simply no reason to add the expense and complexity of additional security measures to any but the most sensitive (or tempting) targets.

Where technology has provided imperfect protection for digital assets, however, the law has stepped in to fill the gaps. The Digital Millennium Copyright Act was enacted by Congress in 1998 “to strengthen copyright protection in the digital age.”¹ It contains several provisions designed to add legal teeth to the electronic “locks” that protect digital information. First, the so-called “anti-circumvention” provision provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work” protected by copyright. Second, the “anti-trafficking” provisions makes it unlawful to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that is “primarily designed or produced” or “marketed” to circumvent such measures or the protections they provide.² These measures essentially make it illegal to access protected digital content without authorization (or sell devices that do so) regardless of what the reason for that access might be. Courts initially read these provisions extremely broadly and allegations relating to them have become staples of digital intellectual property litigation, providing, among other things, a clean pathway into the federal courts even in the absence of an underlying copyright infringement. But some recent decisions, including one in September from the U.S. District for the Eastern District of New York,³ have suggested that view may be narrowing.

Brief History of Circumvention