Deconstruction a Robotic Toy: Unauthorized Circumvention and Trafficking in Technology

I. ABSTRACT Section 1201(a) of the Digital Millennium Copyright Act governs legal protection for "access control" technologies that safeguard intellectual property in digital and analog form. The provision creates a new tort that is separate from copyright infringement. Illegal conduct may be subject to civil remedies or criminal penalties, depending on a defendant's intent. This survey article applies [sections] 1201(a) to published facts about a toy hack in order to analyze the statute's structure and language. The article is written for non-specialists. It provides basic vocabulary and concepts, making the statute widely accessible and offering an early view of potential issues. II. INTRODUCTION Intellectual property pirates annually divert billions of dollars from businesses all over the world. They sell and give away illegal copies of software, movies and songs, transferring creative works across the Internet in a ceaseless flow of data. Copyright owners struggle to protect their works, using encryption and other technological measures to control access and copying. But experience teaches that all these measures may be evaded. The United States Congress enacted the Digital Millennium Copyright Act (1) ("DMCA" or "Act") to supplement technological safeguards with legal protection. Although the Act became effective October 28, 1998, (2) Congress delayed the effective date of [sections] 1201(a)(1) until October 28, 2000. (3) Subsection 1201(a)(1) provides "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." Subsection (a)(2) prohibits manufacturing, importing, offering to the public, providing or otherwise trafficking in technologies that are created, used or marketed to circumvent technological measures ("trafficking in technology"). (4) Few courts have interpreted these provisions. This article explores how the statute works, analyzing the published details of efforts to hack and alter the operations of a lifelike computerized toy. The article presents basic vocabulary and concepts for non-specialists. The goal is to seek a logical, methodical way to apply the statute. The analysis focuses on a copyright owner's ability to protect his literary work, source code, (5) embodied on epoxy-coated microchips as object code. (6) The article comments on historical background, notes evolving technological vocabulary, and examines the foundational elements that plaintiffs must prove, i.e., the existence of a "protected work" and a "technological measure." It then considers the elements of illegal conduct (unauthorized circumvention and trafficking in technology), touching briefly on civil remedies and criminal penalties for that conduct. III. BACKGROUND Copyright laws often fail to protect digital works effectively. (7) Laws developed decades ago were not designed to address digital communications that can cross the world in seconds. (8) Earlier laws were enacted when unauthorized reproductions (of print, film or audiotape) resulted in inferior copies. Digital reproductions, however, can give rise to identical and virtually identical copies every time. The millionth copy of software can perfectly duplicate the first. Moreover, by merely tapping on a keyboard, unauthorized persons can start, literally in the blink of an eye, the distribution of millions of perfect copies across multiple channels of distribution, including the Internet. Analog works, also protected under the statute, can be converted to, and distributed in, digital form. The ability to transmit millions of reproductions at lightening speed serves, in essence, to compress commercial time. This alters product availability and costs, affecting economic relationships and opportunities all over the world. Manufacturers and producers, among others, can obtain commercial control of all of these works as if the person who authored the creative original work of authorship did not even exist. …