On 4/29/99, Sabrina McLaughlin <smclaughlin1[_at_]doc.gov> wrote:
>
> Professor Litman is quite right, although there is a strange and
> unseemly complication in that the AHRA does not DEFINE what a Serial
> Copy Management System IS... (Even the legislative history on this
> makes it difficult to track down, because new technology makes such a
> defined system -- designed with DAT machines in mind -- more or less
> obsolete. So the fallback question becomes: what systems are (there
> aren't) certified under the law as prohibiting unauthorized serial
> copying.
Industry negotiated a voluminous (that is, nearly 80 page) detailed "technical reference document" defining SCMS in very precise terms, and that document was in fact incorporated by reference in the version of the bill that initially passed the Senate -- the Senate version also required a complicated rulemaking by the Commerce Department. The version passed by the House deleted the incorporation by reference, but retained a slimmed down version of the rulemaking. The unofficial understanding was that the system defined in the technical reference document was agreed by all the relevant industry groups to comply with whatever the statute required an SCMS to do. The general opinion seemed to be that as technology developed, Commerce would certify as an SCMS any system that did the same thing as the system defined in the technical reference document. I believe that the Commerce Department has never gotten around to the rulemaking, and there doesn't seem to have been any pressure from any industry group to inspire it to do so. DAT machines never gained enough market share to make it worth it.
If the _Rio_ case ends up holding that MP3 players fall within the terms of the AHRA, then I would expect some industry lobbying of Commerce to redefine SCMS in terms that make sense for current technology. It seems equally likely, though, that the court will hold that Congress didn't intend AHRA to apply to computer hardware or software at all.
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