Page 3 of 5 -
When Is A "Technological Measure" "Effective" And When Is Compliance Mandated?
(3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
The inclusion of the "selection of parts and components" language is critical. Without such language, it might have been argued that even though no mandate is imposed as to initial or overall design, the clause could be invoked against initial choices made in the selection of components, or against later decisions by a manufacturer to change component selection if a technical measure no longer produces a response in the product’s "ordinary" operation. This would have imposed a design straightjacket on products that are staple articles of commerce, and could have subjected such products to conflicting demands of content providers that, by law, the products must maintain responsiveness to multiple and/or discordant upstream techniques.
By contrast, the pending distance education legislation imposes an affirmative obligation on educational institutions to implement new technical measures if an existing one is no longer effective. In adopting this legislation, the Senate went on record in confirming that this approach was fundamentally different from the approach adopted in the DMCA, and that the agreed-upon language was not intended to have any precedential value in interpreting the DMCA. In its “section-by-section” description of the legislation, the Senate said in relevant part:
Paragraph (2)(D)(ii) provides, as a condition of eligibility for the exemption, that a transmitting body or institution apply technological measures that reasonably prevent both retention of the work in accessible form for longer than the class session and further dissemination of the work. This requirement does not impose a duty to guarantee that retention and further dissemination will never occur. Nor does it imply that there is an obligation to monitor recipient conduct. Moreover, the "reasonably prevent’’ standard should not be construed to imply perfect efficacy in stopping retention or further dissemination. The obligation to "reasonably prevent’’ contemplates an objectively reasonable standard regarding the ability of a technological protection measure to achieve its purpose. Examples of technological protection measures that exist today and would reasonably prevent retention and further dissemination, include measures used in connection with streaming to prevent the copying of streamed material, such as the Real Player "Secret Handshake/Copy Switch’’ technology discussed Real Networks v. Streambox, 2000 WL 127311 (Jan. 18, 2000) or digital rights management systems that limit access to or use of encrypted material downloaded onto a computer. It is not the Committee’s intent, by noting the existence of the foregoing, to specify the use of any particular technology to comply with subparagraph (2)(D)(ii). Other technologies will certainly evolve. Further, it is possible that, as time passes, a technological protection measure may cease to reasonably prevent retention of the work in accessible form for longer than the class session and further dissemination of the work, either due to the evolution of technology or to the widespread availability of a hack that can be readily used by the public. In those cases, a transmitting organization would be required to apply a different measure.