The DMCA's Other Half: Section 1201, Access Controls, Repair, and the Exemptions Nobody Reads
By Casey Scott McKay ·
Section 1201 creates liability for getting around a technological protection measure even where no copyright is infringed, which makes it a distinct regime that catches conduct copyright itself permits. This article separates the three prohibitions - circumventing an access control, trafficking in access circumvention tools, and trafficking in copy-control circumvention tools - and explains why there is no prohibition on the act of circumventing a copy control. It works the circuit split over whether liability requires a nexus to infringement, the permanent statutory exceptions that are narrower than their names suggest, and the triennial exemption process that supplies most of the practical relief. It covers the repair and diagnostics context where the statute now bites hardest, the separate copyright management information regime at Section 1202, and what a device maker and a repairer each need to do.
IP and Technology > Copyright | Article | Published 27 July 2024 - Updated 18 June 2025 | Casey Scott McKay - marksy.us
Summary. Section 1201 creates liability for getting around a technological protection measure even where no copyright is infringed, which makes it a distinct regime that catches conduct copyright itself permits. This article separates the three prohibitions — circumventing an access control, trafficking in access circumvention tools, and trafficking in copy-control circumvention tools — and explains why there is no prohibition on the act of circumventing a copy control. It works the circuit split over whether liability requires a nexus to infringement, the permanent statutory exceptions that are narrower than their names suggest, and the triennial exemption process that supplies most of the practical relief. It covers the repair and diagnostics context where the statute now bites hardest, the separate copyright management information regime at Section 1202, and what a device maker and a repairer each need to do.
Keywords: section 1201 · technological protection measure · access control · copy control · circumvention · trafficking provisions · Chamberlain nexus · MDY split · reverse engineering exception · encryption research · security testing · triennial rulemaking · temporary exemptions · right to repair · copyright management information · section 1202 double scienter · civil and criminal remedies · device design · interoperability · firmware and diagnostics
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