Legal limits of technological protection measures in Europe – open questions based on the ongoing Finnish CSS cases

Abstract

This author considers the Finnish courts’ approach towards cases involving Content Scrambling Systems (CSS). The relevant cases show from a procedural viewpoint how difficult it is to argue cases against major multinational media companies and how difficult it is to get clear technical facts correct in even simple circumvention cases. From a more academic viewpoint the cases give those interested in the subject a set of open questions on the legal limits of technological protection measures in Europe. The note discusses how the scope of anti-circumvention can be limited in practice. In addition to interpretative arguments within the anti-circumvention regulation, one can think of the limitations which come from constitutional law, consumer law and competition law. Also the growing popularity of creative commons and open source licensed works may limit the possibilities to use technological protection measures in the future