[Congressional Record Volume 144, Number 145 (Tuesday, October 13, 1998)]
[Extensions of Remarks]
[Pages E2136-E2139]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    DIGITAL MILLENNIUM COPYRIGHT ACT

                                 ______
                                 

                               speech of

                            HON. TOM BLILEY

                              of virginia

                    in the house of representatives

                        Monday, October 12, 1998

  Mr. BLILEY. Mr. Speaker, as Chairman of the Committee on Commerce, I 
want to make some additional comments. Specifically, given that the 
Conference Report contains several new provisions, I want to supplement 
the legislative history for this legislation to clarify the Conferees' 
intent, as well as make clear the constitutional bases for our action. 
Given the inherent page and time limitations of spelling everything out 
in a conference report, I wanted to share our perspective with our 
colleagues before they vote on this important legislation. Moreover, 
given the unfortunate proclivity of some in our society to file 
spurious lawsuits, I don't want there to be any misunderstanding about 
the scope of this legislation, especially the very limited scope of the 
device provisions in Title I and the very broad scope of the exceptions 
to section 1201(a)(1).
  Throughout the 105th Congress, the Committee on Commerce has been 
engaged in a wide-ranging review of all the issues affecting the growth 
of electronic commerce. Exercising our jurisdiction under the commerce 
clause to the Constitution and under the applicable precedents of the 
House, our Committee has a long and well-established role in assessing 
the impact of possible changes in law on the use and the availability 
of the products and services that have made our information technology 
industry the envy of the world. We therefore paid particular attention 
to the impacts on electronic commerce of the bill produced by the 
Senate and our colleagues on the House Judiciary Committee.
  Much like the agricultural and industrial revolutions that preceded 
it, the digital revolution has unleashed a wave of economic prosperity 
and job growth. Today, the U.S. information technology industry is 
developing exciting new products to enhance the lives of individuals 
throughout the world, and our telecommunications industry is developing 
new means of distributing information to these consumers in every part 
of the globe. In this environment, the development of new laws and 
regulations could well have a profound impact on the growth of 
electronic commerce.
  Article 1, section 8, clause 8 of the United States Constitution 
authorizes the Congress to promulgate laws governing the scope of 
proprietary rights in, and use privileges with respect to, intangible 
``works of authorship.'' As set forth in the Constitution, the 
fundamental goal is ``[t]o promote the Progress of Science and useful 
Arts. . . .'' In the more than 200 years since enactment of the first 
federal copyright law in 1790, the maintenance of this balance has 
contributed significantly to the growth of markets for works of the 
imagination as well as the industries that enable the public to have 
access to and enjoy such works.

  Congress has historically advanced this constitutional objective by 
regulating the use of information--not the devices or means by which 
the information is delivered or used by information consumers--and by 
ensuring an appropriate balance between the interests of copyright 
owners and information users. Section 106 of the Copyright Act of 1976, 
17 U.S.C. 106, for example, establishes certain rights copyright owners 
have in their works, including limitations on the use of these works 
without their authorization. Sections 107 through 121 of the Copyright 
Act, 17 U.S.C. 107-121, set forth the circumstances in which such uses 
will be deemed permissible or otherwise lawful even though 
unauthorized. In general, all of these provisions are technology 
neutral. They do not regulate commerce in information technology. 
Instead, they prohibit certain actions and create exceptions to permit 
certain conduct deemed to be in the greater public interest, all in a 
way that balances the interests of copyright owners and users of 
copyrighted works.
  As proposed by the Clinton Administration, however, the anti-
circumvention provisions to

[[Page E2137]]

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.
  Section 1201(a)(1), in lieu of a new statutory prohibition against 
the act of circumvention, creates a rulemaking proceeding intended to 
ensure that persons (including institutions) will continue to be able 
to get access to copyrighted works in the future. Given the overall 
concern of the Committee that the Administration's original proposal 
created the potential for the development of a ``pay-per-use'' society, 
we felt strongly about the need to establish a mechanism that would 
ensure that libraries, universities, and consumers generally would 
continue to be able to exercise their fair use rights and the other 
exceptions that have ensured access to works. Like many of my 
colleagues in the House, I feel it will be particularly important for 
this provision to be interpreted to allow individuals and institutions 
the greatest access to the greatest number of works, so that they will 
be able to continue exercising their traditional fair use and other 
rights to information.
  Under section 1201(a)(1)(C), the Librarian of Congress must make 
certain determinations based on the recommendation of the Register of 
Copyrights, who must consult with the Assistant Secretary of Commerce 
for Communications and Information before making any such 
recommendations, which must be made on the record. As Chairman of the 
Committee on Commerce, I felt very strongly about ensuring that the 
Assistant Secretary would have a substantial and meaningful role in 
making fair use and related decisions, and that his or her views would 
be made a part of the record. Given the increasingly important role 
that new communications devices will have in delivering information to 
consumers, I consider it vital for the Register to consult closely with 
the Assistant Secretary to understand the impact of these new 
technologies on the availability of works to information consumers and 
to institutions such as libraries and universities. As the hearing 
record demonstrates, I and many of my colleagues are deeply troubled by 
the prospect that this legislation could be used to create a ``pay-per-
use'' society. We rejected the Administration's original proposed 
legislation in large part because of our concern that it would have 
established a legal framework for copyright owners to exploit at the 
expense of ordinary information consumers. By insisting on a meaningful 
role for the Assistant Secretary and by ensuring that a court would 
have an opportunity to assess a full record, we believe we have 
established an appropriate environment in which the fair use interests 
of society at large can be properly addressed.

  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--

[[Page E2138]]

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.
  I was particularly pleased that the Senate conferees shared our 
Committee's assessment of the importance of addressing the playability 
issue and of encouraging all interested parties to strive to work 
together through a consultative approach before new technological 
measures are introduced in the market. As the conferees pointed out, 
one of the benefits of such consultation is to allow the testing of 
proposed technologies to determine whether they create playability 
problems on the ordinary performance of playback and display equipment, 
and to thus be able to take steps to eliminate or substantially 
mitigate such adverse effects before new technologies are introduced. 
As the conferees recognized, however, persons may choose to implement a 
new technology without vetting it through an inter-industry 
consultative process, or without regard to the input of the affected 
parties. That would be unfortunate.

  In any event, however a new protection technology or new copyright 
management information technology comes to market, the conferees 
recognized that the technology might materially degrade or otherwise 
cause recurring appreciable adverse effects on the authorized 
performance or display of works. Thus, with our Committee's 
encouragement, the conferees explicitly stated that makers or servicers 
of consumer electronics, telecommunications, or computing products who 
took steps solely to mitigate a playability problem (whether or not 
taken in combination with other lawful product modifications) shall not 
be deemed to have violated either section 1201(a) or section 1201(b). 
Without giving them that absolute assurance, we felt that the 
introduction of new products into the market might be stifled, or that 
consumers might find it more difficult to get popular legitimate 
products repaired.
  I want to add, however, that we shared the concern of our fellow 
conferees that this construction was not meant to afford manufacturers 
or servicers an opportunity to give persons unauthorized access to 
protected content or to usurp the rights under the Copyright Act--not 
title 17 generally--of copyright owners in such works under the guise 
of ``correcting'' a playability problem. Nor was it our intent to give 
the unscrupulous carte blanche to convert legitimate products into 
black boxes under the guise of fixing an ostensible playability problem 
for a consumer.
  Moreover, with respect copyright management information, the 
conferees also made it explicit that persons may make product 
adjustments to eliminate playability problems without incurring 
lability under section 1202 as long as they are not inducing, enabling, 
facilitating, or concealing usurpation of rights of copyright owners 
under the Copyright Act.
  Section 1201(k) requires that certain analog recording devices 
respond to two forms of copy control technology that are in wide use in 
the market today. Neither employees encryption or scrambling of the 
content being protected, but they have been subject to extensive multi-
industry consultations, testing, and analysis. With respect to this 
provision, I think it is important to stress four points. First, these 
analog-based technologies do not create ``playability'' problems on 
normal consumer electronics products. Second, the intellectual property 
necessary for the operation of these technologies will be available on 
reasonable and non-discriminatory terms. Third, we specifically 
excluded from the scope of the provision professional analog 
videocassette recorders, which the motion picture, broadcasting, and 
other legitimate industries and individual businesses use today in, and 
will continue to need for, their normal, lawful business operations. 
And finally, and most importantly, we have established very definitive 
``encoding rules'' to ensure that we have preserved long-standing and 
well-established consumer home taping practices.
  As Chairman of the Committee on Commerce, which has jurisdiction over 
such communications matters as the distribution of free and 
subscription television programming, I think it is important to stress 
that the encoding rules represent a careful balancing of interests. 
Although copyright owners may use these technologies to prevent the 
making of a viewable copy of a pay-per-view, near video on demand, or 
video on demand transmission or prerecorded tape or disc containing a 
motion picture, they may not use such encoding to limit or preclude 
consumers from making analog copies of programming offered through 
other channels or services. Thus, in addition

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to traditional over-the-air broadcasts, basic and extended tiers or 
programming services, whether provided through cable or other wireline, 
satellite, or future over-the-air terrestrial systems, may not be 
encoded with these technologies at all. In addition, copyright owners 
may only utilize these technologies to prevent the making of a ``second 
generation'' copy of an original transmission provided through a pay 
television service.
  Given that copyright owners may not use these technologies to deprive 
consumers of their right to copy from pay television programming, the 
distinction between pay-per-view and pay television services is 
critical. Where a member of the public affirmatively selects a 
particular program or a specified group of programs and then pays a fee 
that is separate from subscription or other fees, the program offering 
is pay-per-view. Where, however, consumers subscribe to or pay for 
programming that the programmer selects, whether it be one or more 
discrete programs, or a month's worth of programming, then that package 
itself is a pay television service, even if it represents only a 
portion of the programming that might be available for purchase on the 
programmer's channel.
  In short, with the conferees essentially having endorsed the approach 
of the Committee on Commerce to WIPO implementing legislation, we have 
produced a bill that should help spur creativity by content providers 
without stifling the growth of new technology. In fact, with a clear 
set of rules established for both analog and digital devices, product 
designers should enjoy the freedom to innovate and bring ever-more 
exciting new products to market.
  I think we have struck fair and reasonable compromises, and have 
produced a bill of appropriate scope and balance. I urge my colleagues 
to support the conference report.

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