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Dmca protected12/21/2023 The on-line environment, which are designed to prevent the access to on-line content by people Her personal password to the user) could not be held liable towards the owner of the unlawfullyĪccessed content, in particular on the basis of a violation of the (click-on) contractual agreement.Ī similar issue might arise in connection with technological protection measures implemented in However mean that this unauthorized user (as well as the third party who would have transmitted Technological measure”, but merely uses it as would an authorized user do. (a)(1) and § 1201 (a)(3)(A) because it does not “avoid, bypass, remove, deactivate, or impair a The unauthorized use of the identification procedure thereforeĭoes not lead to any circumvention of the technological measure within the meaning of § 1201 One could consider that the act of this unauthorized user does not constitute a violation of theĪnti-circumvention provisions, because her act (entering a password) is not objectively differentįrom the act of a legitimate user. Or without the authorization of this third party) to access the protected content violates § 1201 Question that arises is to analyze whether someone who uses the password of a third party (with The scope of application of the prohibition on circumvention of access protection measures canīe further exemplified by taking two practical examples:Ī) Does the abuse of an identification procedure constitute a circumvention of a technological protection measure?Īs stated above 78, the access control to a protected content in the on-line environment can beĪccomplished through the use of an identification procedure (password and/or identification). Or impair a technological measure, without the authority of the copyright owner.” Scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, § 1201 (a)(3)(A) provides that “to ‘circumvent a technological measure’ means to descramble a Requires the application of information, or a process or a treatment, with the authority of theĬopyright owner, to gain access to the work.” this distinction does not exclude the possibility that a circumventing technology violates both the anti access and the anti copy provisions of the DMCA, see Realnetworks, Inc. L & Arts 1, at 8-9 (2000).ħ7 On this distinction, see above II. Ginsburg, Copyright Use and Excuse on the Internet, 24 Col. 2d, at 321-324 (on the basis of an interpretation of the “crystal clear” Congressional intent) see however J. Cohen, WIPO Copyright Treaty Implementation in the United States, Will Fair Use Survive?, 21 EIPR 236 (1999).ħ6 This view has been adopted by Judge Kaplan in the Universal City Studio v. ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation,ħ3 Dussolier, at 291: “This de facto right goes beyond the criteria of exercise of their rights which justified the protection of TM enacted by the WIPO Treaties” Koelman/Helberger, at 10 and at 23.ħ4 See the article of Nimmer (quoted above), passim.ħ5 See Julie C. “effectively controls access” in § 1201 (a)(3)(B) which provides that “a technological measure Person shall circumvent a technological measure that effectively controls access to a workĭue to the ambiguity of the word “effective” in art. § 1201 (a)(A)(1) prohibits the act of circumventing a technological protection measure (“No
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