We also sought to ensure that consumers could apply their centuries-old fair use rights in the digital age. Sections 1201(a)(2) and (b)(1) make it illegal to manufacture, import, offer to the public, provide, or to otherwise traffic in "black boxes." These provisions are not aimed at staple articles of commerce, such as video cassette recorders, telecommunications switches, and personal computers widely used today by businesses and consumers for legitimate purposes. As a result of the efforts of the Commerce Committee, legitimate concerns about how these provisions might be interpreted by a court to negatively affect consumers have been addressed to the satisfaction of consumer electronics and other product managers.
Section 1201(c)(3), the "no mandate" provision, makes clear that neither of these sections 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. Members of my Subcommittee included an unambiguous no mandate provision out of concern that someone might try to use this bill as a basis for filing a lawsuit to stop legitimate new products from coming to market. It was our strong belief that product manufacturers should remain free to design and produce digital consumer electronics, telecommunications, and computing products without the threat of incurring liability for their design decisions. Had the bill been read to require that new digital products respond to any technological protection measure that any copyright owners chose to deploy, manufacturers would have been confronted with difficult, perhaps even impossible, design choices. They could have been forced to choose, for example, between implementing one of two incompatible digital technological measures. It was the wrong thing to do for consumers and thus, we fixed the problem.