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When Is A "Technological Measure" "Effective" And When Is Compliance Mandated?
To eliminate any uncertainty, the House Commerce Committee simply deleted the "so long as" clause. As I explained on the floor in September, that change merely confirmed my original conception of the amendment. Now that the conferees have adopted a provision requiring certain analog videocassette recorders to respond to certain existing analog protection measures, the "so long as" clause has a meaning that all should agree is logical: Manufacturers of consumer electronics, telecommunications, and computer products are not under a design mandate generally, but they are otherwise subject to a single, very limited, and carefully defined mandate to design certain analog videocassette recorders to respond to existing analog protection measures. Quite importantly from my perspective, this provision is limited so as not to impair the reasonable and accustomed home taping practices of consumers recognized in the Supreme Court’s Betamax decision.7
The provision referred to by Senator Ashcroft, section 1201(k), specifically mandates a response to a particular analog anti-copy encoding, but also provides "encoding rules" to limit its use to defined instances considered not to be within reasonable and customary consumer recording practices. Section 1201(k)(5) provides that a failure of a covered device to respond to such encoding shall be treated as a violation of subsection (b)(1), and hence as "circumvention." Thus a specific, statutory exception to the "no mandate" clause was judged to be warranted. It is also understood, implicitly, that the "no mandate" clause would not give shelter under subsections (a)(2) or (b)(1) to an entire device whose only purpose is to interfere with the elective, designed response of other devices.8
1 The TEACH Act, S. 487, passed by the Senate on June 7, 2001 107 Cong. Rec. S5988 et seq. (June 7, 2001).
2 The World Intellectual Property Organization ("WIPO") is an arm of the United Nations that, among other things, convenes diplomatic conferences to negotiate international treaties with respect to intellectual property. In 1996, a WIPO diplomatic conference culminated in twin treaties with similar provisions -- a "Copyright" treaty and a "Phonograms" treaty. Further information can be obtained at www.WIPO.org.
3 This definition, without any implied understanding, appears both circular and self-contradictory. The understanding to be implied is that the conduct addressed is that which effectively limits the exercise of a copyright holder’s right by someone not authorized to exercise it.
4 Just as Humphrey Bogart never said "Play it again, Sam," the DMCA does not repeat the exact WIPO phrase, "effective technological measure."
5 "Source" and "sink" are technical and licensing parlance to indicate the movement of content between devices or applications. The "source" is the device or function from which the content emanates; the "sink" is the destination.
6 Congressional Record, 105th Congress, August 4, 1998, H7094. The Commerce Committee Report on H.R. 2281, 105-551, July 22, 1998, contains a similar formulation in a paragraph directed to 1201(b) but couched in terms of 1201(a). The later floor statement clarifies the committee’s formulation. Rep. Bliley also clarified that measures causing "noticeable and recurring adverse effects on the authorized display or performance of works should not be deemed to be effective."
7 Congressional Record, October 8, 1998, S11888. See also floor statements of Reps. Klug, Tauzin and Boucher on final passage, Congressional Record, October 12, 1998, H 10621, October 13, 1998, E2144, October 14, 1998, E2166.
8 See Bliley August 4 floor statement at H7095.
Robert S. Schwartz is General Counsel of the Home Recording Rights Coalition. Jeffrey L. Turner is Legislative Counsel of the Home Recording Rights Coalition.