Copyrights Without Limits: The Undefeatable Right of Access Control Under §1201(A) of the Digital Millennium Copyright Act

39 Pages Posted: 3 Jun 2015

See all articles by Kristian Stout

Kristian Stout

International Center for Law & Economics (ICLE)

Date Written: June 8, 2015


The law of unintended consequences is inescapable. Although the criticism of the Digital Millennium Copyright Act (“DMCA”) reached a height more than a decade ago, the damaging effects this law has on innovation continues to this day. Section 1201 of the DMCA contains prohibitions on the use of and trafficking in technologies that “effectively control[] access to work[s]” protected under the Copyright Act (the “anti-circumvention provisions”). In a commendable effort to hedge against their own inability to foresee changes in the landscape of technology, Congress created a power in the Librarian of Congress (“LOC”) to establish exemptions to the DMCA’s anti-circumvention provisions every three years. However, such a grant of power only underscores how well Congress is aware that the DMCA could hinder innovation and consumer choice, and how that body is consequently forced to play defense against the negative effects of the law. Congress is forced to consider and ratify the selective exemptions that the LOC chooses to make regarding who should be exempted.

A recent controversy involving this section of the DMCA is responsible for the Unlocking Consumer Choice and Wireless Competition Act (“Consumer Choice Act”), signed into law by President Obama. Starting in 2006, the Copyright Office recognized an exemption to §1201 that would allow for consumers to unlock their cellphones — a process by which an individual purchaser would be able to take a phone purchased, for instance, at an AT&T store and use it on Verizon’s network. This exemption was renewed in 2010, but in 2013 the Copyright Office refused to renew it again. When the exemption was lost, a petition was created that fetched over 114,000 signatures in favor of allowing cell phone unlocking.

The Consumer Choice Act was the result of coordination between the “FCC, industry, and Congress,” and allowed consumers “to use their phones or mobile devices on any network they choose.” This law enshrines the previously retracted exemption that allows users of cell phones to unlock their devices without running afoul of §1201 of the DMCA. Thus, the legislation officially recognizes a practice that should have arguably never been proscribed by copyright law. No actual copyright infringement was at issue when users simply wanted to use their cellphones on different networks. The DMCA, in this case, was merely a set of handcuffs locking consumers into a particular consumption pattern preferred by device manufacturers and network carriers. Moreover, this one fairly narrow, mundane issue — consumer choice in the use of cellphones — hints at the untold existence of other possible alternate uses of devices and technologies that are kept from the market because of fears that they won’t pass muster under §1201.

However, the focus on what exemptions the LOC will recognize, and when Congress will fully authorize them by statute, is something of a sideshow — at least when judged against the entire framework of §1201 and certain defects therein. In the jurisprudence surrounding the DMCA, there yet remains a circuit split regarding important implications of new property rights arguably, and accidentally, created in the anti-circumvention provisions. Thus, the viability of this law as it is sometimes being applied is far from certain until it reaches the Supreme Court.

Section 1201(a) specifically forbids the circumvention of technological protection measures (“TPM”) that effectively control access to a work protected under the Copyright Act. By contrast, §1201(b) prohibits trafficking in devices that enable third parties to circumvent TPMs that effectively protect a right of a copyright holder guaranteed under the Copyright Act. Therefore, §1201(a) appears to provide a cause of action when someone merely circumvents a protection measure, regardless of whether a particular right of a copyright holder is violated, whereas §1201(b) requires that the measure in question actually be in service of protecting a right granted under the Copyright Act.

The Federal Circuit has held that §1201(a), despite its broad language, could not reasonably be read to mean that it was forbidden to circumvent a TPM, when that measure has no connection to an actual right guaranteed under the Copyright Act. In the view of the Federal Circuit, without a nexus between circumvention and the infringement of a right, §1201(a) would create a nearly unbounded new property right that extends far beyond the scope of what one would consider a copyright.

By contrast, the Ninth Circuit believes that the plain language of the text of §1201(a), coupled with certain readings of the legislative history, compel it to recognize a broad access control right. In reaching its holding, the Ninth Circuit acknowledged the arguments underlying the Federal Circuit’s opinion, and dismissed them as mere policy considerations.

This Paper examines the tensions between these two positions. Much of the reasoning in both opinions turned on statutory interpretation techniques, with each court relying on a different set of suppositions regarding how best to interpret §1201. Ultimately, this Paper will take the position that the Federal Circuit is on the better constitutional and statutory interpretation ground for various reasons, and that the Supreme Court should see §1201 as requiring an infringement nexus.

Suggested Citation

Stout, Kristian, Copyrights Without Limits: The Undefeatable Right of Access Control Under §1201(A) of the Digital Millennium Copyright Act (June 8, 2015). Marquette Intellectual Property Law Review, Vol. 19, No. 2, 2015, Available at SSRN:

Kristian Stout (Contact Author)

International Center for Law & Economics (ICLE) ( email )

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