[Congressional Record Volume 144, Number 152 (Thursday, November 12, 1998)]
[Extensions of Remarks]
[Page E2315]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    DIGITAL MILLENIUM COPYRIGHT ACT

                                 ______
                                 

                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                      Thursday, November 12, 1998

  Mr. BERMAN. Mr. Speaker, anyone trying to discern the meaning of the 
anticircumvention provisions of H.R. 2281 risks bewilderment by the 
many pages of the Congressional Record that have been devoted to the 
detailed analyses submitted by one or another Member of this House. I 
am a member of the Judiciary Committee, which reviewed this legislation 
in detail, and which reported the key provisions in a form in which 
they ultimately received the approval of the House and of the 
conference committee, on which I also served.
  First, the operative provisions which define the key prohibition of 
trafficking in the tools of circumvention of technological protection 
measures--section 1201(a)(2) and (a)(3), and section 1201(b)(1) and 
(b)(2), of Title 17--were not changed throughout the legislative 
process. They read almost verbatim in the final version of this 
legislation, which is on the way to the President's desk, as they read 
when the legislation was first introduced, when it was reported by the 
Judiciary Committee, and when it was unanimously approved by the House. 
Thus, statements on the floor that purport to explain how these 
provisions have been narrowed, or how implicit exceptions to them--not 
spelled out in the language of the bill--have been expanded, deserve 
little attention. In particular, the three-point test spelled out in 
sections 1201(a)(2) and 1201(b)(1) for determining whether a particular 
product or service runs afoul of the legislation has never been 
substantively amended. This test remains operative, not the test of 
``no legitimate purpose'' imagined by some of my colleagues.
  Second, the operative provision defining the prohibition on the act 
of circumvention of technological protection measures that control 
access to copyrighted materials--contained in section 1201(a)(1)--has 
also emerged from the legislative process completely unchanged. It is 
true that the effective date of this prohibition has been delayed, and 
that a rulemaking proceeding has been grafted on to this provision to 
determine whether, with regard to particular classes of copyrighted 
materials, the applicability of this particular prohibition should be 
delayed even further. But the prohibition itself remains unchanged, and 
means exactly what it meant when our committee first reported it 
several months ago.
  Third, section 1201(c)(3)--the no mandate provision--in the final 
text of this legislation is identical to the provision that emerged 
from the Senate Judiciary Committee over six months ago. The changes 
proposed by the House Commerce Committee, which threatened to open a 
huge loophole in the protections afforded by the legislation, were 
rejected by the conference committee. The no mandate provision means 
what it says, and what it says is this: there is no design mandate in 
this legislation, other than the negative mandate to avoid designing a 
product primarily for the purpose of circumventing an effective 
technological measure. The addition, by the conference committee, of 
specific provisions concerning certain protections used to control 
copying of audiovisual works in analog formats does not change the 
meaning of section 1201(c)(3) one iota. If the conferees had intended 
that these new provisions were to have had any impact on the 
application of the ``no mandate'' provisions to other technological 
protection measures, we would have said so. We did not, in fact, we 
said the opposite.
  Fourth, on the much-contested issue of playability, the language 
adopted in the conference report is the most definitive statement 
substantively on the circumstances under which product performance 
adjustment does or does not violate the anticircumvention provisions of 
this legislation. The conference report, which specifically addresses 
this issue, has been adopted without recorded dissent in both Houses, 
and any subsequent inconsistent interpretation should carry no weight.
  I do not seek to put a new gloss on the words in the conference 
report. Those words speak for themselves. I would simply point out that 
nearly all the fundamental operative provisions of Title 1 of H.R. 
2281, and indeed, of much of the rest of the bill as well, simply 
recapitulate the provisions that have been part of this legislation 
since it was introduced, that have remained unchanged throughout the 
complex and protracted legislative process, and that are amply 
explained by the reports of the respective Judiciary Committees, which 
first approved them.

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