the use of such copyrighted content. In effect, content owners have sought through various
proposed federal legislation to mandate the inclusion of technological measures in devices that
would be covered by the anti-circumvention provisions of the DMCA. Computer, consumer
electronic, and other technology companies have resisted such legislation mightily, arguing that
they must be free to design their own products without legislative strictures.
On Jan. 14, 2003, the RIAA, the Business Software Alliance (BSA),^1444 and the
Computer Systems Policy Project (CSPP)^1445 announced that they had reached agreement on a
core set of seven principles to guide their public policy activities in the 108th Congress (2003)
regarding the distribution of digital content.^1446 Pursuant to the agreement, the recording
companies agreed that they would not seek government intervention to mandate technical
solutions to prevent digital piracy and would in most instances oppose legislation that would
require computers and consumer electronics devices to be designed to restrict unauthorized
copying of audio and video material. In turn, the BSA and CSPP would not support legislation
that seeks to clarify and bolster the rights of persons to use copyrighted material in digital
format. Notably absent from the agreement were consumer electronics companies, who felt that
legislation was needed to ensure that consumers can make fair use of digital copyrighted material
even when secured with technology to prevent illegal copying, and the MPAA, whose members
continued to be concerned that digital television broadcasts and movies copied from DVDs
would soon be traded over the Internet in high volumes.^1447
- Anticircumvention Provisions Under the European Copyright Directive
The European Copyright Directive adopts the approach of the DMCA, in that it would
outlaw both conduct and the manufacture or distribution of devices that could be used to defeat
technological copyright protections. With respect to conduct, Article 6(1) provides that member
states “shall provide adequate legal protection against the circumvention of any effective
technological measures, which the person concerned carries out in the knowledge, or with
reasonable grounds to know, that he or she is pursuing that objective.”^1448 The language of
(^1444) Members of the BSA include Adobe, Apple, Autodesk, Avid, Bentley Systems, Borland, Cisco Systems,
CNC/Mastercam, Dell, Entrust, HP, IBM, Intel, Internet Security Systems, Intuit, Macromedia, Microsoft,
Network Associates, Novell, PeopleSoft, SeeBeyond, Sybase, and Symantec. “Recording, Technology
Industries Reach Groundbreaking Agreement on Approach to Digital Content Issues,” available on the BSA
web site as of Jan. 15, 2003 at http://www.bsa.org/usa/press/newsreleases//2003-01-14.1418.phtml.
(^1445) Members of the CSPP include Dell, Intel, HP, Motorola, NCR, IBM, EMC, and Unisys. Id.
(^1446) The seven policy principles may be found on the BSA web site at http://www.bsa.org/usa/policyres/7_principles.pdf.
(^1447) Amy Harmon, “Music Industry Won’t Seek Government Aid on Piracy” (Jan. 15, 2003), available as of Jan. 15,
2003 at http://www.nytimes.com/2003/01/15/business/15PIRA.html.
(^1448) Notwithstanding the general prohibition on circumvention of effective technological measures, Article 6(4)
provides that, “in the absence of voluntary measures taken by rightholders, including agreements between
rightholders and other parties concerned, Member States shall take appropriate measures to ensure that
rightholders make available to the beneficiary of an exception or limitation provided for in national law in
accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that
exception or limitation, to the extent necessary to benefit from that exception or limitation and where that
beneficiary has legal access to the protected work or subject-matter concerned.”