Since I posted this yesterday, I've seen two well-thought-out posts suggesting that the case is a closer one under the DMCA than I gave it credit for. Here's why I think it isn't. One of the things I said yesterday was that if there's a technological protection measure here, it looks like “copy protection rather than access protection, which puts defendants in the clear.” I'll try to unpack that now.
The DMCA contains three key prohibitions. First, it prohibits you from “circumvent[ing] a “technological measure” that “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to” a work protected by copyright. Second, it prohibits you from manufacturing, providing, or otherwise trafficking in any technology designed or marketed to do the same thing. Third, it prohibits you from manufacturing, providing, or otherwise trafficking in any technology designed or marketed to circumvent a technological measure that, in the ordinary course of its operation, prevents, restricts, or otherwise limits folks' ability to copy, publicly display, publicly perform, or make derivative works based on a work protected by copyright.
We don’t need to worry about the second two prohibitions today, because the law firm wasn't providing anybody with circumvention technology. Rather, the question is: Did the law firm's banging on the Internet Archive with requests for the page circumvent a “technological measure” that in the ordinary course of its operation “require[d] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access”?
I don't think so. This language describes technology that mediates access — that allows access to some people and not to others, depending on whether the person seeking access had properly applied “information, or a process or a treatment,” so that the copyright owner authorized him to get access. Think pay-per-view. Think DivX. The Internet Archive server that the law firm banged on, by contrast, was running code designed to prevent anybody from downloading a copy of the pages in question. Distributing software designed to circumvent that code would fit within the third DMCA prohibition I listed — so if you think that making repeated requests for something can constitute circumvention, then the DMCA might prohibit a person from distributing user-friendly “Internet Archive-banging” software. But nothing in this case implicates the first prohibition.
I was not directly discussing the DMCA, but European law, which seems to have a slightly different definition.
However, I see nothing in the American definition excluding the case that someone uses technological measures to restrict access for everybody.
A lock to a door doesn’t cease to be a lock just because the door opens for no one.
And, while the Internet Archive measure might be understood to close the door for everybody (why don’t they just delete the data they are not supposed to deliver anymore?), “robots.txt” does make a difference. In my “robots.txt” I shut Google out from my site, since I don’t like Google, but let Yahoo in. The “robots.txt” door is not closed to everyone.
I’ve written a reply post (trackback seems to time-out)
Internet Archive DMCA “Circumvention” – Access vs. Copying
“As we DMCA-fans know, there’s a whole subgenre devoted to issues of
access vs copying, and the merger thereof, since there is a
stand-alone access control circumvention prohibition, but not a
stand-alone copy control circumvention prohibition. However, I don’t
see where “access” requires “some people and not to others”.
I think I’ve put my finger on the DMCA problem:
Proposition: OPT-OUT controls are not DMCA access controls