Re: Technology prohibiting copying by VCRs, etc.

On 10/26/98, Larry Helfer <larry.helfer[_at_]lls.edu> wrote:
>
> Section 1201(k) of the Digital Millenium Copyright Act contains a
> series of complex provisions that require manufacturers and importers
> of a variety of VCRs to install, within 18 months of the Act's passage,
> "automatic gain control copy control technology" or "colorstripe copy
> control technology" which will prevent consumers from making private
> copies of pay-per-view, video on demand, and certain other transmissions
> of audiovisual works

That's not quite right, although the language is very confusing. There is no requirement as such that manufacturers install agc control or colorstrip control technology. Rather, there is a prohibition, effective immediately, on selling, importing, etc. existing devices modified to eliminate existing agc or colorstripe control technology and a requirement on manufactureres that had not previously manufactured or sold cassette recorders to conform to colorstripe control in their newly introducted models. (1201 (k) (1) (B)). However, Sec. 1201 (k) (1) (A) does require that commencing 18 months after the enactment date, the designated cassette recorders do comply with agc control copy control technology.

> thus effectively overruling in part the Sony Betamax case on
> technological grounds).

We need to remember that Sony very specifically focused on copying for time shifting purposes of "free" over the air broadcast of copyrighted works; it is not at all clear that Sony fair use (particularly given the way the Court so drastically limited Sony in Campbell) would eapply to copying pay per view or similar works.

> Does anyone have more information on how these technologies operate
> and whether they can be used to prevent consumers from taping "off
> the air" (something Congress apparently does not want to restrict)?

It would seem that this technology restricts copying by interacting with encoding in the input signal. In that respect, as to over the air copying, Section 1201 (k) (2) appears to limit input of agc or colorstripe control technology encoding to transmissions such as video on demand, pay per view etc. and the Conference Report specifically says that the use of copy control technology on consumer videocassette recorders is limited to the prevention of "the making of a viewable copy of a pay-per-view, near video on demand, or video on demand transmission or prerecorded tape or disk containing one or more motion pictures or other audiovisual works," without impairing the ability of consumers to make analog copies of other types of programming; "the basic and expanded basic tiers of programming services ... may not be encoded with these technologies at all."

Sheldon W. Halpern
The Ohio State University College of Law <shalpern[_at_]pop.service.ohio-state.edu> Received on Tue Oct 27 1998 - 22:24:58 GMT