3
rights of an author under section 106 of the Copyright Act. Consequently, a technological
measure that prevents unauthorized distribution or public performance of a work would fall
in this second category.
Copyright Office Summary December 1998 Page 4
unauthorized copying of a copyrighted work. Making or selling devices or services that 2
are used to circumvent either category of technological measure is prohibited in certain
circumstances, described below. As to the act of circumvention in itself, the provision
prohibits circumventing the first category of technological measures, but not the
second.
This distinction was employed to assure that the public will have the continued
ability to make fair use of copyrighted works. Since copying of a work may be a fair use
under appropriate circumstances, section 1201 does not prohibit the act of circumventing
a technological measure that prevents copying. By contrast, since the fair use
doctrine is not a defense to the act of gaining unauthorized access to a work, the act of
circumventing a technological measure in order to gain access is prohibited.
Section 1201 proscribes devices or services that fall within any one of the
following three categories:
! they are primarily designed or produced to circumvent;
! they have only limited commercially significant purpose or use other
than to circumvent; or
! they are marketed for use in circumventing.
No mandate
Section 1201 contains language clarifying that the prohibition on circumvention
devices does not require manufacturers of consumer electronics, telecommunications
or computing equipment to design their products affirmatively to respond to any
particular technological measure. (Section 1201(c)(3)). Despite this general ‘no
mandate’ rule, section 1201(k) does mandate an affirmative response for one particular
type of technology: within 18 months of enactment, all analog videocassette recorders
must be designed to conform to certain defined technologies, commonly known as
Macrovision, currently in use for preventing unauthorized copying of analog
videocassettes and certain analog signals. The provision prohibits rightholders from
applying these specified technologies to free television and basic and extended basic tier
cable broadcasts.
The Digital Millennium Copyright Act of 1998
Copyright Office Summary December 1998 Page 5
Savings clauses
Section 1201 contains two general savings clauses. First, section 1201(c)(1)
states that nothing in section 1201 affects rights, remedies, limitations or defenses to
copyright infringement, including fair use. Second, section 1201(c)(2) states that
nothing in section 1201 enlarges or diminishes vicarious or contributory copyright
infringement.
Exceptions
Finally, the prohibitions contained in section 1201 are subject to a number of
exceptions. One is an exception to the operation of the entire section, for law
enforcement, intelligence and other governmental activities. (Section 1201(e)). The


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