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When Is A "Technological Measure" "Effective" And When Is Compliance Mandated?
Nothing in section 110(2) should be construed to affect the application or interpretation of section 1201. Conversely, nothing in section 1201 should be construed to affect the application or interpretation of section 110(2).
DMCA Legislative History
The legislative history of the DMCA indicates that Congress intended to require minimum attributes for measures to be deemed "effective," and thus to trigger DMCA obligations. On the occasion of initial passage of the DMCA by the House of Representatives, Chairman Tom Bliley, on behalf of the House Commerce Committee, addressed the meaning of "effectively protects" in the context of section 1201(b):
Section 1201(b)(2) of H.R. 2281 defines important phrases, including when a protection measure "effectively protects a right of a copyright owner under title 17, United States Code." In our view, the measures that would be deemed to "effectively" protect such rights would be those based on encryption, scrambling, authentication, or some other measure which requires the use of a "key" to copy a work.6
The legislative history further explains the origins and force of the "no mandate" provision, section 1201(c)(3), and its link to the requirement that a measure must, in ordinary operation, be "effective" before it can be considered "circumvented." Reps. Rick Boucher and Scott Klug, in additional views included in the Report of the House Commerce Committee, made this link explicit:
[T]he bill, by its terms (like the WIPO treaties), covers only those measures that are "effective." Pursuant to this limitation, an amendment we offered which was adopted at subcommittee clarified that device and component designers and manufacturers are not under any legal obligation to respond to or to accommodate any particular technological protection measure. Without such clarification, the bill could have been construed as governing not only those technological protection measures that are already "effective," such as those based on encryption, but also those that might conceivably be made "effective" through the enactment of the legislation. This result would be far cry from governing "circumvention."
Senator Ashcroft, who first offered the amendment containing the "no mandate" clause, further clarified that its one limitation - "so long as [the device or component] does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1)" - does not weaken the general force of the "no mandate" provision. Rather, it recognizes a specific, singular exception:
As my colleagues know, there had been some concern expressed that the "so long as" clause of section 1201(c)(3) made the provision appear to be circular in its logic. In other words, there was concern that the entire provision could be read to provide in essence that manufacturers were not under any design mandate to respond to technological measures, as long as they "otherwise" designed their devices to respond to existing technological measures. I never shared that perspective.