Page 121 - 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

purpose with little commercial significance other than circumvention, the manufacturers or
sellers of the device are still liable for violating the anti-device clause. As Dan Burk pointed
out, by shifting the focus from ‘substantial non-infringing use’ to ‘limited commercially
significant purpose’, the anti-device provision creates ‘a comparatively broader zone of
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penumbral rights’. Although Congress asserted that the anti-device provision would not
render cryptographic devices with substantial legitimate purposes illegal, it offered the
example of programmes that could help users recover passwords or password-protected
works to gain access to their own works, without providing a more generally defined
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exemption.
In another report, issued at the time the DMCA was enacted, Congress addressed this
conflict, arguing that ‘the Sony test of “capab[ility] of substantial non-infringing uses”, while
still operative in cases claiming contributory infringement of copyright, is not part of this
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legislation’. The leading treatise on copyright, Nimmer on Copyright, also reiterated the
independence of the Sony rule and the anti-device provision, clarifying that after the DMCA
had passed, device manufacturers could not rely on the Sony doctrine to determine if their
products were lawful. A device with a substantial non-infringing use could ‘be immune
from attack under Sony's construction of the Copyright Act, but nonetheless still be subject
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to suppression under Section 1201’. Some courts have also stated that the Sony rule has
been overruled by the DMCA ‘to the extent of any inconsistency between Sony and the new
statute’.
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To render the anti-device provision consistent with the theory of secondary liability
and to secure the incentives for technology advancement, I argue that the exemption for
the anti-access provision should also apply to the anti-device provision. After all, it would
be unreasonable to impose liability for the manufacturing or selling of a device when the
users of the device are authorised by law. One can never know in what way and for what
purpose a device will be used until it is actually in use. If the device is ultimately used for a
permitted circumvention, it should be deregulated. If it turns out that the user used the device
for an infringing circumvention, the device provider should be charged with contributory
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infringement if s/he has knowledge of the user’s infringement. In my non-commercial
UGC levy proposal, under which UGC platforms facilitate platform users’ access to TPM-
controlled works, a UGC platform would be liable only if the user’s access to the work were
unlawful and the platform had knowledge of the unlawful access.

102 Dan L. Burk, ‘Anticircumvention Misuse’ (2003) 50 UCLA Law Review 1095, 1136.
103 S. Rept.105-190, at 16 (1998).
104 House Comm. on Judiciary, Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of
Representatives on August 4, 1998, at 9.
105 1 Nimmer on Copyright (1999 Supp.), § 12A.18[B]; RealNetworks v. Streambox, 2000 U.S. Dist. LEXIS 1889, at 23.
106 Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 323 (2000).
107 Contributory infringing liability would be established upon two elements: material contribution and knowledge. See note 193
in Chapter 2 and Section 3.2.2.

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