Congress is currently considering “distance education” legislation that would require certain institutions to implement "technical measures that reasonably prevent" certain conduct.1 By contrast, the Digital Millennium Copyright Act addresses "circumvention" of a technical measure that "effectively protects a right of a copyright owner … in the ordinary course of its operation…." In this discussion we explore: when is a technological measure "effective" under the DMCA and under what circumstances, if any, is a designer of a device under an obligation to avoid "circumvention?" As will become apparent, the pending distance education legislation imposes obligations on affected educational institutions that are fundamentally different from those imposed on manufacturers of consumer electronics, telecommunications, and computer products.

WIPO Treaties Text

The phrase "effective technological measure" was introduced in the 1996 WIPO Treaties.2 The United States urged WIPO to include a binding measure, modeled on proposals previously considered in the U.S. Congress, that would have required each member state to include in its laws a specific provision against circumvention of any "technological measure" deployed to protect a work. Other WIPO members resisted mandating a specific provision in national law. Ultimately, a compromise was accepted requiring member states to provide remedies against the circumvention of "effective technological measures":

Article 11

Obligations Concerning Technological Measures

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 the 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.

DMCA Text

The 1998 DMCA was put forward as legislation to implement U.S. compliance with these treaties. The relevant provisions of the DMCA, codified at 17 U.S.C. § 1201 et seq., address "circumvention" in two contexts: in section 1201(a), of a measure that "effectively controls access to a work," and in section 1201(b), of a measure that (otherwise) "effectively protects a right of a copyright owner." With respect to "access," section 1201(a)(3) provides these definitions:

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