DMCA - ANALYSIS - TITLE 1

ENCRYPTION RESEARCH EXCEPTION

Jonathan Band’s DMCA Memo

TITLE I: WIPO TREATIES IMPLEMENTATION

Circumvention of Copyright Protection Systems - New Section 1201
Encryption Research Exception. Recognizing the need to improve the ability of copyright owners to prevent the theft of their copyrighted works, Congress provided an encryption research exception intended to advance the state of knowledge in the field of encryption technology and to assist in the development of encryption products.⁹ Circumvention in the course of a good faith encryption research may be allowed if the following conditions are met;

1. the researcher lawfully obtained the copyrighted work;
2. circumvention is necessary for the encryption research;
3. the researcher made a good faith effort to obtain authorization from the copyright owner before the circumvention; and
4. circumvention is otherwise permissible under the applicable laws.¹⁰

In addition to the above factors, the DMCA directs the court to consider three other factors:

1. whether the information derived from the research was disseminated to advance the knowledge or development of encryption technology or to facilitate infringement;
2. whether the researcher is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced in the field of encryption technology; and
3. whether the researcher timely notifies the copyright owner with the findings and documentation of the research.¹¹

Furthermore, a person may develop and employ or provide to his collaborator technological means to circumvent for the sole purpose of performing acts of good faith encryption research.

1. Reverse Engineering Exception
2. Exception for Law Enforcement and Intelligence Activities
3. Encryption Research Exception
4. Security Testing Exception
5. Exception Regarding Minors
6. Protection of Personally Identifying Information
7. Exemption for Nonprofit Libraries, Archives, and Educational Institutions
8. Certain Analog Devices and Certain Technological Measures