Can the Librarian of Congress declare DeCSS to be not in violation of Section 1201?
No. In October 2000, the Librarian of Congress will declare certain uses of certain classes of works to be exempt from the anticircumvention provisions of Section 1201(a)(1). Until then, there is no prohibition on use of circumvention devices, but subsections (a)(2) and (b), which prohibit distribution of devices to circumvent technological controls, are already effective. The Copyright Office is currently holding a rulemaking proceeding to determine which uses and classes of works should be exempt, for a period of three years. The movie studios are challenging the distribution of DeCSS under 1201(a)(2). Depending on the classes of copyrighted works and uses exempted from 1201(a)(1), it might be possible to argue that those uses were a “commercially significant purpose or use other than to circumvent a technological measure,” so the distribution of DeCSS should be permitted, but that argument doesn’t even apply yet.
