How the DMCA restricts circumventing technological protection measures like DRM and encryption

The DMCA restricts you from using technologies to get around Technological Protection Measure Digital Rights Management(DRM). These are called the "Anti-Circumvention" Regulations (Section 1201)(link to anchor in full text page)

This provision is targeted at the DRM(link), encryption, passwords, and the other measures that content companies(link) use to control your ability to access content. However, the provision is written so broadly that it covers not just movies, music, software, but anything that could possibly be copyrighted. In fact, the actual court cases brought under the DMCA have involved software that runs a garage door opener, maintenance software for Library tape systems, and software in a printer to interact with printer ink cartridges.

So how does this effect New Media and my own website/blog/podcast?

There are 3 main prohibitions to be aware of,

1.The first involves direct circumvention of a technological protection measure (DRM, encryption)
2.#2 and #3 deal with distributing (also called "trafficking in") technologies such as software that would allow an individual to circumvent technological protection measures (important if you host or even link to software or other technologies that could circumvent technological protection measures).

1.The DMCA prohibits circumventing a technological protection measure that controls access to a copyrighted work.

Let's say you have video podcast. You want to take a clip from DVD. Most DVDs are encrypted, and even if you are making a fair use[link] ( ie you are making use of a short clip of the movie for commentary or criticism), the act of breaking the encryption is separate from any fair use[link] argument.

Is there any way around this restriction?

Glad you asked, because the answer is YES, there is an EXCEPTION! It's call the Analog Hole - and it appears to be the only completely legal way to get around the circumvention provision.

*** To take advantage of the Analog Hole, always remember this rule of thumb:

You need to be capturing the content( ie video or audio) AFTER it's been decrypted.

So while using software to break a DVD's encryption code could violate this provision, there are other ways to legally make use of the content you would like to obtain, so long as you use the Analog Hole. Examples of likely acceptable ways that you could make use of the Analog Hole to capture content legally might include

  • If you use a licensed program to simply play a DVD on your computer screen, and THEN intercept the signal by doing a simple screen capture.
  • If you play encrypted audio through your sound system and feed the signal into a device for recording.
  • The simple, lo-fi way - Simply use a video camera record screen displaying the video you want to use, or use a sound recorder to record audio that is playing through your speakers.

REMEMBER: Even if you use the Analog Hole, your use of content should still be either 1. a fair use[link] 2. content you have a license to use[link], 3. public domain[link], and 4. otherwise legal. (ie Just because you video record an entire episode of "Next Top Model" it doesn't mean that you have the right to simply post the show on your MySpace page, though you could have other fair use rights(link) to use clips of the show, so check 'em out[link to fair use].)


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