How to Circumvent Technological Protection Measures without Violating the DMCA: An Examination of Technological Protection Measures under Current Legal Standards

Abstract

In MGE UPS Systems, Inc. v. GE Consumer and Industrial Inc. (MGE I) the Fifth Circuit initially dismissed a circumvention claim by stressing that the Digital Millennium Copyright Act (DMCA) only protects material against infringement of a right that the Copyright Act protects, not from mere use or viewing. Under this holding, circumventing a technological protection measure (TPM) only violates the DMCA if the TPM is circumvented to infringe a right protected by the Copyright Act. This narrow interpretation of the anti-circumvention provision caused a panic among copyright owners concerned about protecting against digital piracy. The Fifth Circuit has since amended its MGE I decision to omit this discussion of the DMCA and decided the case on other grounds. Nevertheless, the initial decision illustrates the problem with the current judicial interpretations of the anti-circumvention clause. Under 17 U.S.C. §1201(a)(1)(A), No person shall circumvent a technological measure that controls to a work protected under [the Copyright Act]. Since courts do not agree on the legal standard to apply in anti-circumvention cases, it is unclear to many copyright owners whether their TPMs effectively control access under the various legal standards. This Note surveys the range of TPMs on the market and offers guidance on how the various legal standards currently used by courts to interpret the DMCA may apply to efforts to circumvent these TPMs. Part I provides an overview of the DMCA and TPMs. Part II then describes and categorizes the various legal standards that courts have used to decide anti-circumvention cases. Part III undertakes a technical examination of the most common technological measures used to protect copyrighted material. Based on these technical specifications, Part IV analyzes how each legal standard may be applied to the technological measures and assesses which are likely to constitute valid TPMs under each test.