As proposed by the Clinton Administration, however, the anti-circumvention provisions to implement the WIPO treaties would have represented a radical departure from this tradition. In a September 16, 1997 letter to Congress, 62 distinguished law professors expressed their concern about the implications of regulating devices through proposed section 1201. They said in relevant part: "[E]nactment of Section 1201 would represent an unprecedented departure into the zone of what might be called paracopyright—an uncharted new domain of legislative provisions designed to strengthen copyright protection by regulating conduct which traditionally has fallen outside the regulatory sphere of intellectual property law."
The ramifications of such a fundamental shift in law would be quite significant. Under section 1201(a)(1) as proposed by the Administration, for example, a copyright owner could deny a person access to a work, even in situations that today would be perfectly lawful as a legitimate "fair use" of the work. In addition, under section 1201(b) as proposed by the Administration, a copyright owner could successfully block the manufacturing and sale of a device used to make fair use copies of copyrighted works, effectively overruling the Supreme Court’s landmark decision in Sony Corporation of America v. Universal Studios, Inc., 464 U.S. 417 (1984).
In the view of our Committee, there was no need to create such risks, including the risk that enactment of the bill could establish the legal framework that would inexorably create a "pay-per-use" society. The WIPO treaties permit considerable flexibility in the means by which they may be implemented. The texts agreed upon by the delegates to the December 1996 WIPO Diplomatic Conference specifically allow contracting states to "carry forward and appropriately extend into the digital environment limitation and exceptions in their national laws which have been considered acceptable under the Berne Convention" and to "devise new exceptions and limitations that are appropriate in the digital network environment."
Thus, the Committee endeavored to specify, with as much clarity as possible, how the anti-circumvention right, established in title 17 but outside of the Copyright Act , would be qualified to maintain balance between the interests of content creators and information users. The Committee considered it particularly important to ensure that the concept of fair use remain firmly established in the law and that consumer electronics, telecommunications, computer, and other legitimate device manufacturers have the freedom to design new products without being subjected to the threat of litigation for making design decisions. The manner in which this balance has been achieved is spelled out in greater detail below.
In making our proposed recommendations, the Committee on Commerce acted under both the "copyright" clause and the commerce clause. Both the conduct and device provisions of section 1201 create new rights in addition to those which Congress is authorized to recognize under Article I, Section 8, Clause 8. As pointed out by the distinguished law professors quoted above, this legislation is really a "paracopyright" measure. In this respect, then, the constitutional basis for legislating is the commerce clause, not the "copyright" clause.
I might add that the terminology of "fair use" is often used in reference to a range of consumer interests in copyright law. In connection with the enactment of a "paracopyright" regime, consumers also have an important related interest in continued access, on reasonable terms, to information governed by such a regime. Protecting that interest, however denominated, also falls squarely within the core jurisdiction of our Committee.
We thus were pleased to see that the conference report essentially adopts the approach recommended by our Committee with respect to section 1201. Let me describe some of the most important features of Title I.
Sections 1201(a)(2) and (b)(1) make it illegal to manufacture, import, offer to the public, provide, or otherwise traffic in so-called "black boxes"--devices with no substantial non-infringing uses that are expressly intended to facilitate circumvention of technological measures for purposes of gaining access to or making a copy of a work. These provisions are not aimed at widely used staple articles of commerce, such as the consumer electronics, telecommunications, and computer products--including videocassette recorders, telecommunications switches, personal computers, and servers--used by businesses and consumers everyday for perfectly legitimate purposes.
Section 1201(a)(3) defines "circumvent a technological protection measure," and when a technological protection measure "effectively controls access to a work." As reported by the Committee on the Judiciary, the bill did not contain a definition of "technological protection measure." The Committee on Commerce was concerned that the lack of such a definition could put device and software developers, as well as ordinary consumers, in an untenable position: the bill would command respect for technological measures, but without giving them any guidance about what measures they were potentially prohibited from circumventing. Given that manufacturers could be subject to potential civil and criminal penalties, the Committee felt it was particularly important to state in our report that those measures that would be deemed to effectively control access to a work would be those based on encryption, scrambling, authentication, or some other measures which requires the use of a `key’ provided by a copyright owner to gain access to a work. Measures that do not meet these criteria would not be covered by the legislation, and thus the circumvention of them would not provide a basis for liability.
Section 1201(b)(2) similarly defines "circumvent protection afforded by a technological measure," and when a technological measure "effectively protects a right of a copyright owner under title 17, United States Code." In our Committee report and in my own floor statement accompanying passage of the original House bill, I felt it was important to stress in this context as well those measures that would be deemed to effectively control copying of a work would be those based on encryption, scrambling, authentication, or some other measure which requires the use of a "key" provided by a copyright owner. The inclusion in the conference report of a separate new provision dealing with the required response of certain analog videocassette recorders to specific analog copy protection measures extends this scope, but in a singular, well-understood, and carefully defined context.
Section 1201(c)(3) provides that nothing in section 1201 requires that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computer product provide for a response to any particular technological measure, so long as the device does not otherwise violate section 1201. With the strong recommendation of my Committee, the House had deleted the "so long as" clause as unnecessary and potentially circular in meaning. However, with the addition by the conferees of new subsection (k), which mandates a response by certain devices to certain analog protection measures, the "so long as" clause of the original Senate bill finally had a single, simple, and clear antecedent, and thus was acceptable to me and my fellow House conferees.
If history is a guide, someone may yet try to use this bill as a basis for filing a lawsuit to stop legitimate new products from coming to market. It was the Committee’s strong belief--a view generally shared by the conferees--that product manufacturers should remain free to design and produce consumer electronics, telecommunications, and computing products without the threat of incurring liability for their design decisions. Imposing design requirements on product and component manufacturers would have a dampening effect on innovation, on the research and development of new products, and hence on the growth of electronic commerce.
The Committee on Commerce recognized that it is important to balance the interest in protecting copyrighted works through the use of technological measures with the interest in allowing manufacturers to design their products to respond to consumer needs and desires. Had the bill been read to require that products respond to any technological protection measure that any copyright owner chose to deploy, manufacturers would have been confronted with difficult, perhaps even impossible, design choices, with the result that the availability of new products with new product features could have been restricted. They might have been forced to choose, for example, between implementing two mutually incompatible technological measures. In striking a balance between the interests of product manufacturers and content owners, the Committee believed that it was inappropriate and technologically infeasible to require products to respond to all technological protection measures. For that reason, it included the "no mandate" provision in the form of section 1201(c)(3). As a result of this change, it was the Committee’s strongly held view that the bill should not serve as a basis for attacking the manufacture, importation, or sale of staple articles of commerce with commercially significant non-infringing uses, but it would provide content owners with a powerful new tool to attack black boxes. Except for the one recognition in the conference report of the balanced requirements of section 1201(k) as "otherwise" imposing certain obligations, this provision remains unchanged from the House bill.
Based on prior experience and the extensive hearing record, the Committee also was concerned that new technological measures and systems for preserving copyright management information might cause "playability" problems. For example, the Committee learned that, as initially proposed, a proprietary copy protection scheme that is today widely used to protect analog motion pictures could have caused significant viewability problems, including noticeable artifacts, with certain television sets until it was modified with the cooperation of the consumer electronics industry. Concerns were expressed that H.R. 2281 could be interpreted to require consumer electronics manufacturers to design their devices not only so that they would have to respond to such similarly flawed schemes, but also that they, and others, would be prevented by the proscriptions in the bill from taking necessary steps to fix such problems.
As advances in technology occur, consumers will enjoy additional benefits if devices are able to interact, and share information. Achieving interoperability in the consumer electronics environment will be a critical factor in the growth of electronic commerce. Companies are already designing operating systems and networks that connect devices in the home and workplace. In the Committee’s view, manufacturers, consumers, retailers, and professional servicers should not be prevented from correcting an interoperability problem or other adverse effect resulting from a technological measure causing one or more devices in the home or in a business to fail to interoperate with other technologies. Given the multiplicity of ways in which products will interoperate, it seems probable that some technological measures or copyright management information systems might cause playability problems.
To encourage the affected industries to work together with the goal of avoiding potential playability problems in advance to the extent possible, the Committee emphasized in its report and I made clear in my floor statement that a manufacturer of a product or device (to which 1201 would otherwise apply) may lawfully design or modify the product or device to the extent necessary to mitigate a frequently occurring and noticeable adverse effect on the authorized performance or display of a work that is caused by a technological measure in the ordinary course of its design and operation. Similarly, recognizing that a technological measure may cause a playability problem with a particular device, or combination of devices, used by a consumer, the Committee also emphasized that a retailer, professional servicer, or individual consumer lawfully could modify a product or device solely to the extent necessary to mitigate a playability problem caused by a technological measure in the ordinary course of its design and operation. The conferees made clear in their report that they shared these views on playability.
In this connection, the Committee on Commerce emphasized its hope that the affected industries would work together to avoid such playability problems to the extent possible. We know that multi-industry efforts to develop copy control technologies that are both effective and avoid such noticeable and recurring adverse effects have been underway over the past two years. The Committee strongly encouraged the continuation of those efforts, which it views as offering substantial benefits to copyright owners in whose interest it is to achieve the introduction of effective technological protection measures and, where appropriate, copyright management information technologies that do not interfere with the normal operations of affected products.
