It is extraordinarily difficult to control recording without inadvertently damaging the audiovisual quality of watching or listening to the same material. This problem is real, and has confronted our industry repeatedly over the last 20 years. The proposed text would restrict the ability to design and improve products. It also could make manufacturers liable for failing to implement one protection technology although it is incompatible with another. As a result, devices that can remove protection for lawful uses are unlikely to be made.
Fair use becomes an empty promise if there are no lawful means accessible to consumers to enable it.
The public policy implications of a Technological Measures provision are equally great under the Database proposal, since protected works can consist solely of non-original compilations of facts and public domain materials. Indeed, it need merely be capable of substantial noninfringing uses. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing. Moreover, in order to resolve this case we need not give precise content to the question of how much use is commercially significant. Clearly, then, the Technological Measures proposal overturns the heart of the Supreme Court's ruling to the detriment of the manufacturers and consumers of recording equipment.