DMCA - ANALYSIS - TITLE 1

CERTAIN ANALOG DEVICES AND CERTAIN TECHNOLOGICAL MEASURES

Jonathan Band’s DMCA Memo

TITLE I: WIPO TREATIES IMPLEMENTATION

Circumvention of Copyright Protection Systems - New Section 1201
Certain Analog Devices and Certain Technological Measures. Title I contains a provision which specifically addresses the protection of analog television programming and prerecorded movies in relation to recording capabilities of ordinary consumer analog video cassette recorders. It requires analog video cassette recorders to conform to the two forms of copy control technology that are in wide use in the market today - the automatic gain control technology and the colorstripe copy control technology.¹⁹ The provision prohibits tampering with these analog copy control technologies to render them ineffective by redesigning of video recorders or by intervention of "black box" devices or "software hacks."

As an essential element of this provision, Congress included specific encoding rules to preserve long-standing consumer home taping practices. Copyright owners may use these technologies to prevent the making of a viewable copy of a pay-per-view program or a prerecorded tape, for example, but cannot limit the copying of traditional over-the-air broadcasts or basic and extended tiers of programming services, whether provided through cable or other wireline, satellite, or future over-the-air terrestrial systems. In addition, copyright owners may only utilize these technologies to prevent the making of a ’second generation’ copy of an original transmission provided through a pay-television service.

This provision becomes effective in eighteen months. Professional devices and Beta and 8mm VCRs, however, are exempt from its requirements.

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