Challenging your right to record

Emedia Professional, August, 1998 by Robert A. Starrett

this spring has seen a pitched battle fought in the House and Senate Judiciary committees over the proposed legislation to implement the World Intellectual Property Organization (WIPO) treaties. At the heart of the battle is the wording of House Resolution 2281. At stake is nothing less than the future of CD-R. Article Two of the resolution reads as follows:

"No person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof that--

(A) is primarily designed or produced for the purpose of circumventing a technological protection measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological protection measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person for use in circumventing a technological protection measure that effectively controls access to a work protected under this title."

The phrases "circumvent a technological protection" and "effectively controls access to the work" are further defined in the bill as follows:

"(A) to `circumvent a technological protection' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological protection measure, without the authority of the copyright owner; and

(B) a technological protection measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."

It doesn't take a genius to imagine who supports this measure as currently phrased and who is against it. A careful look at the wording reveals why the Home Recording Rights Coalition (HRRC), the Digital Future Coalition, the Consumer Electronics Manufacturing Association (CEMA), and many others are concerned. According to Gary Shapiro, president of the of CEMA and chairman of the HRRC, "A manufacturer, to avoid the risk and expense of litigation, would be faced with the near-impossible burden of designing its products to respond to any and every present or future technological measure used by even a single copyright owner."

On April 1, 1998, the House Judiciary Committee approved H.R. 2281, reporting it out to the House floor without the amendment proposed by representative Rick Boucher (D-VA) that would have clarified the bill by noting that that section 1201 did not apply to home uses of VCRs or computer products. Chairman Henry Hyde did allow the the legislation to go to the House floor subject to an "open rule" that would allow amendments, which was encouraging to Shapiro. The amendment failed, he said, in part because "several members of the House Judiciary Committee still think we are exaggerating when we warn that this legislation would affect VCRs in the market today and could chill the design of new recording and computing products, so as to deny consumers the benefits of technological innovation."

A month later, in the Senate Judiciary committee, Senators Orrin Hatch, Patrick Leahy, and John Ashcroft sponsored an an amendment that significantly clarifies the legislation. Senate bill 1146 makes it clear that the legislation does not require that the design of a consumer electronics, telecommunications, or computing product must provide for any response to any technological protection measure. The Senate bill places legal obligations on conduct, rather than on devices.

Senator Ashcroft, a former Missouri Attorney General, led a group of state attorneys general in filing a Supreme Court brief supporting a pro-consumer outcome in the "Betamax" case, wherein Universal City Studios sued Sony Corporation, alleging that the Sony Betamax video recorders' ability to copy television broadcasts represented contributory copyright infringement. The decision upheld the right of the consumer to use such devices personally, recognizing home video-taping as a "Fair Use" under existing copyright law.

Section B of senate bill 1146 amends section 117 of the Copyright Act of 1976 to include the following language:

"Notwithstanding the provisions of section 106, it is not an infringement to make a copy of a work in a digital format if such copying-

(1) is incidental to the operation of a device in the course of the use of a work otherwise lawful under this title; and

(2) does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

Another section of the bill calls for censuring "circumvention conduct"--attempts to circumvent copyright protection--not the existence of devices that can be used for such conduct:

"No person, for the purpose of facilitating or engaging in an act of infringement, shall engage in conduct so as knowingly to remove, deactivate or otherwise circumvent the application or operation of any effective technological measure used by a copyright owner to preclude or limit reproduction of a work or a portion thereof. As used in this subsection, the term 'conduct' does not include manufacturing, importing, or distributing a device or a computer program."