Page 120 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 4 Formulating a Non-commercial UGC Access Levy Scheme
An Intermediary-oriented Approach

uncertainty over whether the manufacturing or trafficking of a device is an independent
infringement even if the device has been legally used.
According to the statutory language, the exceptions to the anti-access provision, namely,
17 U.S.C. § 1201 (a)(1), cannot extend to 17 U.S.C. §1201(a)(2). Even if the circumvention
of access control falls under the umbrella of statutory limitations, the manufacturers or
sellers of a device that enables a qualified circumvention are still condemned. In some
cases, the device is used by users who have already gained authorised access to a work but
wish to deploy the device to circumvent TPMs so the work can run on another operating
system. For example, the defendant in Reimerdes argued that he had used DeCSS ‘not to
gain unauthorized access, but to allow interoperability or compatibility with a different
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system’. However, the court rejected that defence. Although Congress intended to exempt
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the subsequent actions of users who have gained authorised access, the exemption does not
benefit the device’s manufacturer or seller. In other words, traditional copyright law prohibits
acts of infringement in addition to acts that contribute to or induce actual infringement.
In contrast, the DMCA seems to prevent the act of facilitating infringement regardless
of whether the infringement has occurred. The anti-device clause is inconsistent with the
traditional theory of secondary liability.
Some commentators have observed that the law has already relieved concerns over the
broad reach of the anti-device provision based on the restrictions contained in the clause. A
device must meet the following criteria to run afoul of the anti-device provision. First, the
device must be ‘primarily designed or produced for the purpose of circumventing’ access
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controls. Second, if the device is not primarily designed or produced for circumvention, it
should have ‘only limited commercially significant purpose or use other than’ circumventing
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access controls. Third, if the device is not primarily designed or produced for
circumvention, or has a commercially significant purpose other than circumvention, it should
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be ‘marketed’ for its use in circumvention. Jane Ginsburg concluded that these conditions
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have restricted the prohibitive effects of the anti-device provision.
Nevertheless, these three conditions seem to be inconsistent with the Sony rule under
which a device manufacturer is not liable for an infringement committed by a device maker
as long as the device is capable of substantial non-infringing uses. Under the anti-device
clause of the DCMA, even if a device is capable of substantial non-infringing use, if it is
primarily designed for or marketed for the purpose of circumventing access control or has a

96 Landau (n 15) 294.
97 H. Rept. 105-551 (I), at 18 (1998); S. Rept.105-190, at 28 (1998).
98 17 U.S. Code § 1201 (a)(2)(A).
99 17 U.S. Code § 1201 (a)(2)(B).
100 17 U.S. Code § 1201 (a)(2)(C).
101 17 U.S. Code § 1201(a)(2); Jane C Ginsburg, ‘Copyright Legislation for the Digital Millennium’ (1999) 23 Columbia VLA
Journal of Law & the Arts 137, 144.

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