waiver under the copyright laws because the DMCA is not a copyright statute. The Federal
Circuit affirmed this ruling on appeal for the same reasons invoked by the Court of Claims, and
also noted the rule that the Court of Claims lacks jurisdiction to adjudicate claims created by
statutes, like the DMCA, which specifically authorized jurisdiction in the district courts.^1443
(d) Alternative Approaches to the DMCA That Did Not PassTwo of the alternatives bills that were introduced to implement the WIPO treaties which
did not pass, S. 1146 and H.R. 3048, would have prohibited only certain defined circumvention
conduct, rather than devices. Specifically, Section 1201 of S. 1146 and H.R. 3048 provided that
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.” Thus, these bills would not have banned
circumvention undertaken for reasons other than facilitating or engaging in infringement, such as
fair uses. In addition, Section 1201 of these bills expressly defined “conduct” not to include
manufacturing, importing or distributing a device or a computer program.
Although Section 1201(a) of these bills referred only to technological measures used to
preclude or limit reproduction of a copyrighted work, and did not refer to access to a copyrighted
work (as is included in the DMCA), the definition of “effective technological measure” in
Section 1201(c) of these bills included two references to access. Specifically, “effective
technological measure” was defined as information included with or an attribute applied to a
transmission or a copy of a work in a digital format which “encrypts or scrambles the work or a
portion thereof in the absence of access information supplied by the copyright owner; or includes
attributes regarding access to or recording of the work that cannot be removed without degrading
the work or a portion thereof.” This was a much more specific and narrower definition of
effective technological measure than that contained in the DMCA.
Unlike Section 1201, Section 1202 of S. 1146 and H.R. 3048 was largely identical to
Section 1202 of the DMCA with respect to removal, alteration or falsification of CMI. The most
important difference was that Section 1202 of S. 1146 and H.R. 3048 contained language making
clear that the conduct governed by that Section did not include the manufacturing, importing or
distributing of a device (curiously, there was no reference to a computer program, as there was in
the exclusion from Section 1201 of those bills).
(e) The Battle Between Content Owners and Technology Companies
Over Built-In Technological Measures
A growing battle has been developing in recent years between holders of copyright on
content, most notably the Recording Industry Association of America (RIAA) and the Motion
Picture Association of America (MPAA), and technology companies over whether
manufacturers of devices that can be used to play, copy or distribute copyrighted content should
be required to build in to such devices technological protection measures that restrict access to or
(^1443) Blueport Co. v. United States, 533 F.3d 1374, 1382-84 (Fed. Cir. 2008).