La gestion des DRM en perspective

Section 2- Between US Rights and Export

It seems to us interesting to consider the American approach, on the one hand because the United States was equipped, very early, of a legislation in this field and that its approach in term of royalties is different from the vision European and more particularly French.^135(*) Moreover, the American example seems to us to be most suitable insofar as most of the actors of the management of the contents on line proposing solutions already or having developed techniques of DRM are benches there what will enable us for this reason to consider the transfers of data flow towards this country and the implications that that can have in term of attack to the respect of the private life.

§1- the United States and the DMCA

One will approach here the US attitude with respect to these difficulties related to the control of New Technologies. The United States enormously implied itself in these problems of the royalties. Indeed, already in 1995, a White Paper^136(*) recommended that the Act Copyright is amended and that one inserts there provisions prohibiting skirting of average the techniques being used to protect works.^137(*) Thus, following Treaty OMPI of 1996, American will obtain a tool for protection by adopting the DMCA in 1998.

In this respect, one will lean obviously on the protections offered by article 1201 of the DMCA which aims technical measurements more particularly.^138(*) More precisely, the DMCA sanctions the act of skirting as well as the preparatory activities. Three infringements hitherto unknown as regards copyright are created by the American text:

- the skirting of technical measurements which control the access to the works protected by the law ;

- manufacture, distribution and diffusion of devices or the provision of services aiming at circumventing the systems of access control ; ^139(*)

- manufacture, distribution and diffusion of devices or the provision of services allowing the skirting of technical measurements of protection of the rights of the authors. ^140(*)

Thus, it seems that the problems which interest us in Europe are similar in the United States. Indeed, this legislation which extends the protection of the copyright beyond work involves de facto a reduction of the use potential which each user can make what would seem to be against the doctrines of fair uses such as it was desired at the beginning.^141(*)

The equitable use of a work not becoming of this fact almost more possible while at the same time like daN L. Burke says it « the uses off intellectual property law is always has balancing act between Al the greatest number off people to enjoy works At low cost, without lowering the cost so much that the works will never Be created in the first authority. Indeed, this balances is constitutionally mandated in the United States, where the constitution provides Congress with the power to enact copyright laws only yew such laws «promote the progress off science and the useful arts» ». ^142(*)

If it is true that the author must obviously preserve rights on his works, that should not inevitably be done with the exclusive detriment of the user by breaking this fragile balance. It is besides well what D.L. Burk says when it affirms that : « [T] He employment off the anti-circumvention statute to date should as have something off surprised. The record suggests that the anticircumvention right was intended by Congress have has shield rather than has sword, intended have has means to prevent wholesale misappropriation off copyrighted content, rather than have has means to extend content owners' exclusivity to cover adjacent, uncopyrighted technologies. Yet the boxes brought by rights holders thus far, cuts been characterized by has decided lack off anything resembling «piracy» gold unauthorized copying ».^143(*)

Similar to Directive IP Enforcement, at least in the spirit, the United States is also studying a bill^144(*) which would facilitate the penal continuations against the hacking. The senator Leahy entitled « Protecting Intellectual Rights Against Theft and Expropriation Act off 2004 »^145(*), and permetrait « [to] let the Justice Department spins civil lawsuits against file swappers ».^146(*) it would envisage in particular a lightening of the burden of proof when it indicates « IN GENERAL The Attorney General may has civil action in the appropriate United States short district against any person who starts engage in conduct constituting year offends under section 506. Upon proof off such conduct by has preponderance off the obviousness, such person shall Be subject to has civil penalty «. ^147(*)

* ¹³⁵ To look further into this subject, one will read: Julien Lacker, works in line in compared right: rights American and French, May 2003, 79p. www.juriscom.net

* ¹³⁶ Intellectual Property and the National Information Infrastructure, The Carryforward off the Working Group one Intellectual Property Rights, 15 November 1995, www.uspto.gov/web/offices/com/doc/ipnii/

* ¹³⁷ The ease off infringement and the difficulty off detection and enforcement will causes copyright owners to look to technology, have well have the law, for protection off to their works. However, it is clear that technology edge Be used to defeat any protection that technology may provide. The Working Group finds that legal incentive protection alone will not Be adequate to provide to authors to create and to disseminate works to the public. Similarly, technological effective protection likely will not Be unless the law also provides sum protection for the technological processes and systems used to prevent gold restrict unauthorized use copyrighted works off. (...) Therefore, the Working Group recommends that the Copyright Act Be amended to include has new Chapter 12, which would include has provision to prohibit the importation, manufacture gold distribution off any device, product gold component incorporated into has device gold product, but the provision off any service, the primary purpose gold effect off which is to avoid, bypass, remove, deactivate, but otherwise circumvent, without authority off the copyright owner gold the law, any process, treatment, mechanism gold system which prevents gold inhibits the exclusive violation off any off the rights under Section 106. The provision will not eliminate the risk that protection systems will Be defeated, goal it will reduce it. Intellectual Property and the National Information Infrastructure, The Carryforward off the Working Group one Intellectual Property Rights, 15 November 1995, p. 230. www.uspto.gov/web/offices/com/doc/ipnii/

* ¹³⁸ It is an in particular question owing to the fact that the «Section 1201 divides technological measures into two categories: measures that prevent unauthorized accesses to has copyrighted work and measures that prevent unauthorized copying off has copyrighted work  ». The DIGITAL Millennium Act Copyright, 17 U.S.C.S. 1201, 1202, December 1998, p. 4. www.copyright.gov/legislation/dmca.pdf

* ¹³⁹ Cf recent above mentioned businesses  : Federal court of San Francisco on February 19, 2004, www.321studios.com/PRESS/SJ%20Order.pdf & Court of New York U.S. District Judge Richard Owen, 1:03 box - cv-08970-RO, Paramount Pictures and Twentieth Century Fox Film v. 321 Studios, http://news.findlaw.com/hdocs/docs/cyberlaw/pp32130304opn.pdf

* ¹⁴⁰ Rémy KHOUZAM, How the fear of under-protection will generate the catastrophe of over-protection: constitutional examination of the DIGITAL Millenium Copyright Act (DMCA), 2004

www.lex-electronica.org/articles/v9-1/khouzam.htm; Douglas Lichtman and William Moors, indirect liability for copyright infringement: year economic perspective, Harvard Newspaper off Law & Technology, Volume 16, Number 2 Spring 2003, 16p.

* ¹⁴¹Copyright & Fair Use Overview  :http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

* ¹⁴² DaN L. Burk «Anti-Circumvention Misuse», 2002, p. 4.

http://intel.si.umich.edu/tprc/papers/2002/29/misuse.pdf

* ¹⁴³ DaN L. Burk «Anti-Circumvention Misuse», 2002,

http://intel.si.umich.edu/tprc/papers/2002/29/misuse.pdf

* ¹⁴⁴ Sandrine Rouja, the American model of fight against the hacking of music exports herself: review, April 1, 2004, www.juriscom.net

* ¹⁴⁵ http://www.theorator.com/bills108/s2237.html

* ¹⁴⁶ David McGuire, Pirate' Bill Aims Law At Song Swappers, http://www.washingtonpost.com/wp-dyn/articles/A27801-2004Mar26.html

* ¹⁴⁷ http://www.theorator.com/bills108/s2237.html