Advanced Copyright Issues on the Internet - Fenwick & West LLP

equire treaty signatories to provide adequate and effective legal remedies against any personperforming any of the following acts knowing (or, with respect to civil remedies, havingreasonable grounds to know) “that it will induce, enable, facilitate or conceal an infringement ofany right covered by this Treaty or the Berne Convention”: (i) removing or altering anyelectronic rights management information without authority or (ii) distributing, importing fordistribution, broadcasting or communicating to the public, without authority, copies of worksknowing that electronic rights management information has been removed or altered withoutauthority. The treaties define “rights management information” as “information which identifiesthe work, the author of the work, the owner of any right in the work, or information about theterms and conditions of use of the work, and any numbers or codes that represent suchinformation, when any of these items of information is attached to a copy of a work or appears inconnection with the communication of a work to the public.”This subsection 1 discusses the implementation of these rights in the DMCA. Thefollowing subsection 2 discusses the implementation of these rights under the European<strong>Copyright</strong> Directive.The four bills that were introduced in Congress to implement the WIPO treaties adoptedone of two approaches to the circumvention of technological measures and rights managementinformation. The first approach, contained in H.R. 2281 and S. 2037 and ultimately adopted inthe DMCA, outlawed both conduct and devices directed toward or used for circumventingtechnological copyright protection mechanisms. The second approach, contained in S. 1146 andH.R. 3048 but not passed by Congress, outlawed only conduct involving the removal ordeactivation of technological protection measures. Although Bruce Lehman conceded that theWIPO treaties do not mandate adoption of a device-based approach, he and other supporters ofthis approach argued that a conduct-only approach would be difficult to enforce and thatmeaningful legislation should control the devices used for circumvention. 479The DMCA adds several new provisions to the <strong>Copyright</strong> Act, which are contained in anew Chapter 12.(a) Circumvention of Technological Protection Measures(1) Prohibition on ConductSection 1201(a)(1) of the DMCA outlaws conduct to circumvent protection mechanismsthat control access to a copyrighted work: “No person shall circumvent a technological measurethat effectively controls access to a work protected under this title.” Note that this provisiondoes not expressly require either knowledge or intent, and is therefore potentially very broad inits reach – the language states that the mere act of circumvention is a violation, and does notexpressly require that an infringement follow the circumvention act (although some courts havegrafted such a requirement as discussed below). Section 1201(a)(3) defines “circumvent atechnological measure” as “to descramble a scrambled work, to decrypt an encrypted work, or479Cunard & Coplan, “WIPO Treaty Implementation: Debate Over OSP Liability,” Computer Law Strategist(Oct. 1997) 1, 3.- 117 -