159) The basic provision bans the act of circumvention itself.
169) Yet, after careful consideration of the factual circumstances of the case, the court found that allowing the impairment of some speech in order to prohibit unlawful circumvention was consistent with the limitations of the First Amendment's protections.
177) 2600 further argued that the DMCA would allow circumvention of technology to obtain access to material which would be put to fair use, but the court rejected that claim, noting that the DMCA "targets the circumvention of digital walls guarding copyrighted material .
Before the WIPO Copyright Treaty was ratified, an academic predicted that the enactment of anti-circumvention provisions would likely trigger interjurisdictional competition for technological circumvention law.
The enaction of the DMCA in the United States and the battle over whether authors should be provided additional protection against circumvention, in addition to the copyright protection over their works, has demonstrated the realization of Professor Burk's warnings.
Three possible solutions for such problems exist: (1) the WIPO could clarify that its anti-circumvention provisions apply only to the act of circumvention, (2) the countries that are implementing the WIPO treaties could interpret the anti-circumvention provisions as applying only to the act of circumvention, or (3) the countries that are implementing the WIPO treaty could provide for at least adequate exceptions to the anti-circumvention provisions when creating their national legislation.
One possible solution to the problem of the anti-circumvention provisions is for the WIPO to clarify that its anti-circumvention provisions only apply to the act of circumvention.
If they exist at all, such restrictions should be limited to devices that are primarily used for illegal circumvention and have no other legal uses.
Because anticircumvention provisions recognize a difference between original access and subsequent use, it may be legal to make copies of a lawfully acquired work, though it would be illegal to gain access to the work through circumvention to make the same legal copies.
When the manufacture, import, and distribution of circumvention devices is prohibited, even legal users of protected material will only be able to access the material if they personally have the technological expertise to circumvent the protection measures, because their attempts to gain access in any other way may amount to trafficking in prohibited devices.
Implementing a commercial significance standard entails determining whether a prohibited device must have no commercial use other than circumvention or only limited commercial uses other than circumvention.