congressional_record: CREC-1998-11-12-pt1-PgE2315
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| granule_id | date | congress | session | volume | issue | title | chamber | granule_class | sub_granule_class | page_start | page_end | speakers | bills | citation | full_text |
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| CREC-1998-11-12-pt1-PgE2315 | 1998-11-12 | 105 | 2 | 144 | DIGITAL MILLENIUM COPYRIGHT ACT | HOUSE | EXTENSIONS | ALLOTHER | E2315 | E2315 | [{"name": "Howard L. Berman", "role": "speaking"}] | [{"congress": "105", "type": "HR", "number": "2281"}] | 144 Cong. Rec. E2315 | Congressional Record, Volume 144 Issue 152 (Thursday, November 12, 1998) [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. ____________________ |