Internet Archive DMCA "Circumvention" - Access vs. Copying

Further on the Internet Archive DMCA circumention topic, Jonathan Weinberg writes

... if there's a technological protection measure here, it looks like copy protection rather than access protection, which puts defendants in the clear. ...

Did the law firm's banging on the Internet Archive with requests for the page circumvent a "technological measure" that in the ordinary course of its operation "require[d] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access"'

I don't think so. This language describes technology that mediates access - that allows access to some people and not to others, depending on whether the person seeking access had properly applied "information, or a process or a treatment," so that the copyright owner authorized him to get access. Think pay-per-view. Think DivX. The Internet Archive server that the law firm banged on, by contrast, was running code designed to prevent anybody from downloading a copy of the pages in question. ...

As we DMCA-fans know, there's a whole subgenre devoted to issues of access vs copying, and the merger thereof, since there is a stand-alone access control circumvention prohibition, but not a stand-alone copy control circumvention prohibition. However, I don't see where "access" requires "some people and not to others". I mean, I see the argument being made - that an "access" of zero is not access control, but copy control. But take a look at the House legislative report, where it clarifies that copy control is after one has a copy (so initially obtaining a copy is access control, my emphasis below):

Subsection (b) applies when a person has obtained authorized access to a copy or a phonorecord of a work, but the copyright owner has put in place technological measures that effectively protect his or her right under Title 17 to control or limit further use of the copyrighted work.

Let's put it this way - while the programmer part of me thinks that making repeated requests so that an eventual connection time-out leads to getting desired data, is a really neat, err, "work-around" - the reader-of-many-DMCA-cases part of me thinks that's exactly the sort of action that judges tend to view with a jaundiced eye (at least when done by programmers!).

Now, I don't think that the above necessarily means there is a DMCA violation here. But again, the argument is harder than it looks at first glance.

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)