Page:Fair Circumvention.djvu/6

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6
[Vol. 74:1
BROOKLYN LAW REVIEW

signatory nations to adopt new legislation punishing circumvention of access and copy control technologies.

First, Article 11 of the WIPO Copyright Treaty required as follows:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.[1]

The contemporaneous WIPO Performances and Phonograms Treaty imposed a similar obligation, directing in Article 18 as follows:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law.[2]

Title I of the DMCA, captioned the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” was enacted to implement both of these treaty requirements.[3]

The relevant provisions of the DMCA define three distinct offenses, one of which forbids circumvention of a technological measure while the other two forbid trafficking in circumvention devices. The statute’s anti-circumvention provision provides that: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”[4] The statute’s two anti-trafficking provisions are each directed against different types of prohibited devices. The DMCA first forbids the making of or trafficking in devices that circumvent the same sort of access controls that are the subject of the anti-circumvention clause:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
  1. WIPO Copyright Treaty, art. 11, Dec. 20, 1996, S. Treaty Doc. No. 105-17, 2186 U.N.T.S. 121.
  2. WIPO Performances & Phonograms Treaty, art. 18, Dec. 20, 1996, S. Treaty Doc. No. 105-17, 2186 U.N.T.S. 203.
  3. Digital Millennium Copyright Act, Pub. L. No. 105-304, tit. I, § 101, 112 Stat. 2860, 2861 (1998).
  4. 17 U.S.C. § 1201(a)(1)(A) (2006).