What happens if there is obviously a protection measure
but it does not work?
The law says that a protection measure must “effectively control
access” to a work. One court has commented that it does not need
to be a strong means of protection, and entering into a license
agreement with the copyright owners satisfies this requirement under
the statute. The court stated “a technological measure effectively
controls access to a copyrighted work if its function is to control
access.” The court went on to reference the legislative history,
which stated “if, in the ordinary course of its operation, a technology
actually works in the defined ways to control access to a work …[t]his
test, focuses on the function performed by the technology.” Basically,
“effectively control access” to a work requires only a mode of operation
that accomplishes this objective and it does not need to be efficient.
Presumably, if the protection does not work at all then it does
not satisfy the requirements of the statute.
What about fair use?
Though there is significant debate on the issue, recent judicial
decisions have held that the fair use defenses under §107 of the
Copyright Act do not apply to the DMCA. A significant policy debate
continues as to whether this is in the public’s interest, but under
present law, it is not wise to assume that one can violate the DMCA
for a fair use purpose. Consequently, at present, one cannot circumvent
digital copy protections, as prohibited by the DMCA, in order to
access a copyrighted work for a fair use purpose.