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When Is A "Technological Measure" "Effective" And When Is Compliance Mandated?
(cont.)
(3) As used in this subsection --
(A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
(B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
With respect to the "additional violations" addressed by subsection (b), an additional set of definitions is provided in section 1201(b)(2):As used in this subsection --
(A) to "circumvent protection afforded by a technological measure" means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure, and
(B) a technological measure "effectively protects a right of a copyright owner under this title" if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.3
The sets of definitions address different contexts -- the first, in the context of "access control," anticipates a system that is designed so that access requires content owner authorization. The second addresses a more loosely defined circumstance. In each case, however, the "effectiveness" of the measure is tied to "the ordinary course of its operation." This suggests that, to be a "technological measure" that effectively protects rights,4 the measure must be "effective" with respect to some third party or agency that would interfere with the "ordinary" operation of the "sink" device to which the content has been sent.5 In other words, it would be circular, self-fulfilling and oppressive if the law were to make an otherwise ineffective measure "effective" in ordinary operation by mandating a designed-in response by, or precluding changes in the design of, the "sink" product. In such case, it would be the inferred legal mandate, rather than any ordinary operation of the product, that would make the measure effective.
This understanding of "effectively protects" was cemented through the addition of the "no mandate" clause in section1201(c)(3) of the DMCA. This provision, added out of concern that section 1201(b) could be read as legally mandating a designed-in response in order to make a measure "effective," states:
