Page:Fair Circumvention.djvu/38

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[Vol. 74:1

readers or courts might attempt to parse this language literally, only to find themselves stymied by ambiguity. Reasoning from the text alone, one might get as far as the notion that “effectively controls access” must mean something different from merely “controls access,”[1] otherwise the word “effectively” becomes superfluous.[2] But what, then, can “effectively” mean?[3] Perhaps Congress meant to require a certain minimum strength of access control—that is, perhaps Congress meant to say to the courts: a technological protection measure must not only protect access to a work, but must meet some minimal standard of efficacy in doing so; a trivial cipher will not suffice.[4] But the text might equally well support another reading, one that would preclude inquiry into the strength of an access control measure. Congress might have feared, for instance, that courts would interpret the word “control” as requiring absolute control, and added the word “effectively” as a way to signal that something less was required. That is, Congress might have meant the word “effectively” to mean something like “approximately” or “in general.”[5] Having identified this potential ambiguity in the statutory text, the reader might consult the definition to see what Congress actually intended.

The definition, however, turns out in reality to be an anti-definition. It obfuscates, rather than clarifies, the meaning of the term it purports to define:

[A] technological measure “effectively controls access to a work” if the

measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright

owner, to gain access to the work.[6]

Absolutely nothing in this text speaks to the question whether the word “effectively” is meant to connote strength or its absence. Moreover, the definitional provision compounds the ambiguity of the rest of the text by introducing new concepts—such as “the application of information” and “the authority of the copyright owner”—that are difficult to anchor in any ordinary understanding of the terms they purport to define. Is the copyright owner’s authority relevant to an understanding of whether a DRM mechanism has “effectively” restricted access to a work? Or to

  1. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004); supra note 144.
  2. See supra note 65 and authorities cited (discussing principle of statutory construction that Congress is presumed to avoid surplusage).
  3. Our hypothetical reader may be inclined to look to the WIPO treaties for guidance, but would surely be stymied by the absence of support there and by the differing approaches taken by the various nations that have sought to implement the treaties’ anti-circumvention mandates. See Urs Gasser, Legal Frameworks and Technological Protection of Digital Content: Moving Forward Towards a Best Practice Model, 17 Fordham Intell. Prop. Media & Ent. L.J. 39, 69-71 (2006).
  4. Cf. supra note 144 and accompanying text.
  5. Cf. supra note 47 and accompanying text.
  6. 17 U.S.C. § 1201(a)(3)(B).