Should Customs decide what’s a circumvention device?
Should Customs decide what’s a circumvention device?
Should Customs decide what’s a circumvention device?

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    The Digital Millennium Copyright Act (DMCA) is a complex and highly controversial statute, and the anti-circumvention provisions in section 1201 are some of its most complex and controversial components. Despite more than a decade’s worth of judicial interpretation, there remain plenty of unsettled questions about just what constitutes circumvention and just what constitutes a protected technological measure. And what we do know for sure makes a strong case that the anti-circumvention provisions are overbroad and have significant and harmful unintended consequences.

    Yet the Senate is considering a bill that could significantly ramp up enforcement of section 1201 and exacerbate those unintended consequences. Among other things, the bill would give US Customs and Border Protection (CBP) the authority to decide for itself whether merchandise is a prohibited circumvention device, and thus to seize the merchandise at the border.

    There are two sets of inquiries governing DMCA cases: legal questions and technological questions. Before you can determine that a device or tool unlawfully circumvents an effective technological access-control or copy-control measure–the ultimate legal question–you need to know how the technological measure operates, whether it’s actually protecting a copyrighted work, and how the alleged circumvention device operates, as well as whether the circumvention device was designed or marketed for the purpose of circumvention, or simply isn’t useful for much besides circumvention. These are intensely fact-specific questions that require a detailed understanding of the operation of both the technological measure and the circumvention device. To get an idea how important this is, here are two federal appellate decisions interpreting section 1201: Lexmark v. Static Control and Chamberlain v. Skylink. Take a look at the thorough review of the underlying technology in those cases.

    The focus on technology makes DMCA anti-circumvention cases more akin to patent infringement, which requires an understanding of the technology at issue in a particular case and a close legal reading of the patent ‘claims,’ than copyright and trademark infringement, which at their core come down to fairly common-sense notions of similarity. It is worth noting that CBP is empowered to enforce the copyright and trademark laws on its own, but forbidden from doing so with patents. You can block imports of merchandise that infringes your copyrights and trademarks relatively simply, by obtaining a federal registration and then registering it with CBP. But if you want to block imports of patent-infringing merchandise, you need to undergo an evidentiary hearing (basically a mini-trial, where the alleged infringer gets to participate as well) at the US International Trade Commission (ITC) and convince a panel of administrative judges that the merchandise in question well and truly infringes your patent.

    Getting into the nitty-gritty of how things work, whether in a patent case or a section 1201 circumvention case, requires a lot more information than comparing the logos on two wristwatches or the labels on two packages of pharmaceuticals. (And unlike with narcotics, another mainstay of CBP enforcement, there’s no chemical test for circumvention.) Thus far, CBP has been given neither the authority nor the responsibility to make such technological determinations, and there’s no reason to lump circumvention in with copyright infringement just because they both happen to be defined in title 17 of the US Code.

    Another concern is just what kinds of products are amenable to CBP jurisdiction. The DMCA’s anti-circumvention provisions apply to “any technology, product, service, device, component, or part thereof” that has prohibited functionality. But the tangible goods that actually get inspected by Customs agents are only a subset of that list. Some cases where section 1201 is invoked relate to hard goods—like in the Lexmark and Chamberlain cases noted above, which involved toner cartridges and garage door openers, respectively. In both of those cases, the plaintiffs were able to convince district court judges (who were subsequently overturned on appeal) that off-brand products designed for intercompatibility were circumvention devices.

    What are other circumstances where section 1201 might be used against physical goods? Region-free DVD players permit users to watch legally-purchased movies from around the world, regardless of the disc region codes, and DVD players in general tend to be manufactured abroad. It’s currently an open question whether region codes are protected by the DMCA. Do we want the first determination of that question to take the form of a seizure of a shipment of DVD players with no prior notice?

    In any case, the DMCA is invoked far more often against software than against hardware. DeCSS, perhaps the most (in)famous circumvention device, was a piece of software downloaded over the Internet, which enabled the bypassing of yet a different DVD technological measure. Because it came over the Internet, it never passed before Customs inspectors when it made its way from Norway, where Jon Johansen wrote it, to New York City, where Eric Corley was sued for putting a link to it on his website. RealNetworks’ RealDVD and MDY’s “Glider” add-on for World of Warcraft, to name just two other products found to violate section 1201, are software as well. What good is it giving CBP more power in this realm when all the action is taking place in cyberspace?

    To be sure, the DMCA is the law of the land right now. That being the case, it’s absolutely appropriate that we have mechanisms in place to enforce the provisions stating that “[n]o person shall . . . import” a circumvention device. But the law of the land right now is flawed, and we should be trying to minimize the harms that it creates. Giving an administrative agency with no expertise in section 1201 the authority to make decisions about the circumvention capabilities of shipped goods creates a very real possibility of blocking legitimate imports–without addressing software at all. It’s far from clear that CBP is the right place to enforce the anti-circumvention laws. Though we at Public Knowledge are trying to get the law changed, if it’s going to be enforced as written, it should be enforced sensibly.