In its recent report on Section 1201 of Title 17, the Copyright Office amended—in a positive way—its prior interpretation of the interoperability exception in section 1201(f). The Office corrected its assertion in recent section 1201 rulemakings that section 1201(f) does not permit a consumer’s acts of circumvention in order to achieve interoperability between two computer programs. Although this is a highly technical issue, it could have reverberations throughout the economy.
Section 1201 prohibits the circumvention of technological protection measures (TPMs) that restrict access to copyrighted works. It also prohibits the development and distribution of the tools necessary to achieve this circumvention.
Section 1201 contains a variety of exceptions, including section 1201(f), which is entitled “Reverse Engineering.” Section 1201(f)(1) clearly permits the circumvention of a TPM that control access to a computer program for the purpose of “identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs.” That is, section 1201(f)(1) permits circumvention of a digital lock on a computer program for the purpose of reverse engineering the program to achieve interoperability with that program. Section 1201(f)(2) permits the development of the tools necessary to perform the circumvention– to unlock the TPMs.
However, during the rulemakings the Copyright Office has conducted to adopt temporary exemptions to section 1201, the question has arisen whether section 1201(f)(3) permits the circumvention of a TPM on an ongoing basis to achieve interoperability. In other words, after a firm unlocks a TPM to reverse engineer a software platform, may the firm market an application that unlocks the TPM each time it runs on that platform? And may a consumer then unlock the TPM whenever she runs the application?