Potential Defenses

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.