Effective and ineffective technological measures

[Arnold G. Reinhold]

At 11:20 AM +0200 7/29/2001, Alan Barrett wrote:
>The DMCA said:
> > 1201(a)(1)(A):
>>    No person shall circumvent a technological measure that effectively
>>    controls access to a work protected under this title.
>
>What does "effectively" mean here?

The law attempts to define it:

'1201(a)(3)(B) a technological measure ''effectively controls access to a
               work'' if the measure, 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 the work.'

>If it has its plain english meaning, then one could argue that ROT13,
>CSS (and anything else that can easily be broken) are *ineffective*
>technological measures, so circumventing them is not prohibited by this
>clause.  Distinguishing effective measures from ineffective measures
>might reduce to measuring the resources required to break them.
>
>Or does the clause really mean "No person shall circumvent a
>technological measure that *purports to control* access to a work
>protected under this title"?

I suspect most judges would interpret "the ordinary course of its 
operation" the latter way.  Clearly Judge Kaplan was not impressed by 
the fact that CSS was broken by a high school kid.  There is also the 
argument that if a measure is really effective in plain English 
meaning, you don't *need* an anti-circumvention law.

Whether the anti=circumvention provision is constitutional, since it 
eliminates fair use, is another question. There is an excellent 
"Twiki" site at Harvard Law School that has many of these arguments 
and also allows others to contribute: 
http://eon.law.harvard.edu/twiki/bin/view/Openlaw/OpenlawDVD


Arnold Reinhold



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