Chapter 2: Ethical Hacking and the Legal System
43
The DMCA’s anti-circumvention provisions make it criminal to willfully, and for
commercial advantage or private financial gain, circumvent technological measures
PART I
that control access to protected copyrighted works. In hearings, the crime that the anti-
circumvention provision is designed to prevent was described as “the electronic equiva-
lent of breaking into a locked room in order to obtain a copy of a book.”
Circumvention is to “descramble a scrambled work…decrypt an encrypted work, or
otherwise…avoid, bypass, remove, deactivate, or impair a technological measure, with-
out the authority of the copyright owner.” The legislative history provides that “if unau-
thorized access to a copyrighted work is effectively prevented through use of a password,
it would be a violation of this section to defeat or bypass the password.” A “techno-
logical measure” that “effectively controls access” to a copyrighted work includes mea-
sures that, “in the ordinary course of its operation, requires the application of
information, or a process or a treatment, with the authority of the copyright owner, to
gain access to the work.” Therefore, measures that can be deemed to “effectively control
access to a work” would be those based on encryption, scrambling, authentication, or
some other measure that requires the use of a key provided by a copyright owner to
gain access to a work.
Said more directly, the Digital Millennium Copyright Act (DMCA) states that no
one should attempt to tamper with and break an access control mechanism that is put
into place to protect an item that is protected under the copyright law. If you have cre-
ated a nifty little program that will control access to all of your written interpretations
of the grandness of the invention of pickled green olives, and someone tries to break
this program to gain access to your copyright-protected insights and wisdom, the DMCA
could come to your rescue.
When down the road, you try to use the same access control mechanism to guard
something that does not fall under the protection of the copyright law—let’s say your
uncopyrighted 15 variations of a peanut butter and pickle sandwich—you would get a
different result. If someone were willing to extend the necessary resources to break your
access control safeguard, the DMCA would be of no help to you for prosecution pur-
poses because it only protects works that fall under the copyright act.
These explanations sound logical and could be a great step toward protecting hu-
mankind, recipes, and introspective wisdom and interpretations, but this seemingly
simple law deals with complex issues. The DMCA also provides that no one can create,
import, offer to others, or traffic in any technology, service, or device that is designed
for the purpose of circumventing some type of access control that is protecting a copy-
righted item. What’s the problem? Let’s answer that question by asking a broader ques-
tion: Why are laws so vague?
Laws and government policies are often vague so they can cover a wider range of
items. If your mother tells you to “be good,” this is vague and open to interpretation.
But she is your judge and jury, so she will be able to interpret good from bad, which
covers any and all bad things you could possibly think about and carry out. There are
two approaches to laws and writing legal contracts:
• Specifying exactly what is right and wrong, which does not allow for
interpretation but covers a smaller subset of activities.
