November 22 Reading Notes:
Digital Rights Management: Encryption and Mechanical Controls
No person shall circumvent a technological measure that effectively controls access to a
work protected under this title
Librarian of Congress shall examine
o The availability for use of copyrighted works
o The availability for use of works for nonprofit archival preservation, and
o The impact that the prohibition on the circumvention of technological measures
applied to copyrighted works has on criticism, comment, news reporting,
teaching, scholarship, or research.
o The effect of circumvention of technological measures on the market for or
value of copyrighted works
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in
any technology, product, service, device, etc. that:
o Is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a protected work
o Has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a
o Is marketed for use in circumventing a technological measure that effectively
controls access to a protected work
Reverse engineering is not a violation if:
o The person lawfully obtained the encrypted copy
o Such act is necessary to conduct encryption research
o The person made a good faith effort to obtain authorization before the
o Such act does not constitute infringement under this title or a violation of
applicable law other than this section
Factors in determining exemption:
o Whether the information derived from the encryption research was
o Whether the person is engaged in a legitimate course of study, is employed, or is
appropriately trained or experienced, in the field of encryption technology
o Whether the person provides the copyright owner with notice of the findings
and documentation of the research.
Authors Guild v. Google, Inc.
Through its Library Project and its Google Books project, acting without permission of
rights holders, Google has made digital copies of tens of millions of books, including
Plaintiffs’, that were submitted to it for that purpose by major libraries. Google has scanned digital copies and established a publicly available search function.
An Internet user can use this function to search without charge to determine whether
the book contains a specified word or term and also see “snippets” of text containing
the searched-for terms.
Google has allowed the participating libraries to download and retain digital copies of
the books they submit, under agreements which commit the libraries not to use their
digital copies in violation of the copyright laws.
Augments public knowledge by making available information about Plaintiff’s books
without providing the public with a substantial substitute for matter protected by the
Plaintiffs’ copyright interests in the original works or derivatives of them.
An author’s derivative rights do not include an exclusive right to supply information (of
the sort provided by Google) about her works.
Google’s profit motivation does not in these circumstances justify denial of fair use.
The mere speculative possibility that the libraries might allow use of their copies in an
infringing manner does not make Google a contributory infringer.
Viacom International Inc. v. YouTube, LLC, and Google, Inc.
Viacom sued YouTube, a video-sharing site owned by Google, alleging that YouTube had
engaged in "brazen" and "massive" copyright infringement by allowing users to upload
and view hundreds of thousands of videos owned by Viacom without permission
The Digital Millennium Copyright Act's "safe harbor" provisions (which says they are safe
from infringement suits as long as promptly block access to alleged infringing material
(or remove such material from their systems) when they receive notification of an
infringement claim from a copyright holder or the copyright holder's agent) shielded
Google from Viacom’s copyright infringement claims.
Google stated that Viacom itself had "hired no fewer than 18 different marketing
agencies to upload its content to the site". Google argued that since Viacom and its
lawyers were "unable to recognize that dozens of the clips alleged as infringements in
this case were uploaded to YouTube with Viacom