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Judge Asserts Pseudo Distinction to Preserve DMCA
Posted by Ernest Miller on Wednesday, September 03 @ 11:13:01 EDT Digital Millennium Copyright Act
As many critics have noted, the poorly worded DMCA gives a major stick to just about any company that wants to wield it to lock out competitors. The formula is easy: create copyrightable computer program, make use of copyrightable computer program necessary for function of device, add some sort of "protective measure" or handshake necessary before use of copyrightable computer program, instant protection from competition! The consequences for free enterprise from this interpretation of the DMCA are dire, but also patently ridiculous. Unfortunately, that is basically how the courts have been interpreting the DMCA. This is why Lexmark, the printer manufacturer, has so far successfully sued a supplier of parts for third-party printer toner cartridges that compete with Lexmark's first-party printer toner cartridges.

It is unlikely that such a broad interpretation of the DMCA will long stand, since it would create a lawsuit happy chaos with regard to any form of competition in the digital age. With the price of embedded chips falling to negligible amounts, what happens if Ford adds a chip to oil filters (for the consumer's protection, of course) so that only authorized Ford oil filters could be used on cars? Why should printer companies stop at toner cartridges when new technologies would allow them to "print" chips onto paper stock? Not only would you have to buy your toner from Lexmark, but your paper as well. Just about any device that permits third-party replaceable parts would have the ability to lock out the third-party parts, if desired. What a wonderfully anti-competitive world!

Since the law is this ridiculous, jurists are being forced to find distinctions to prevent this nightmare while preserving Jack Valenti's wishes. A recent decision in the Chamberlain Group vs Skylink Technologies shows the logic twisting in action (Chamberlain Group vs Skylink Technologies - Memorandum Opinion and Order - Summary Judgement Motion [PDF]). You see, Chamberlain is about third-party garage door openers instead of DVDs.

Chamberlain is a manufacturer of garage door openers (GDOs). Skylink is manufacturer of universal GDO transmitters that work with the GDOs of many other manufacturers. Chamberlain added a "rolling code" verification system to its GDOs in order to prevent thieves from easily "code grabbing" the signal from a transmitter to open garages later on. Skylink designed a transmitter that was able to activate the Chamberlain "rolling code" GDO anyway. Chamberlain loses money from the sale of Skylink transmitters. Chamberlain sued, among other things, under the DMCA. The decision above is an order denying summary judgement on the DMCA issues.

The problem for the judge was distinguishing the Reimerdes DMCA case from the present facts. In Reimerdes, the decision essentially outlawed all unauthorized devices which decrypted CSS. Under Reimerdes, consumers have no right to access a DVD they purchased unless they use a licensed player. With regard to GDOs, however, the court found a couple of major distinctions. For example, in Reimerdes, the court here claims, the creators of the DVD licensed the decryption software to the manufacturers of players. Thus there were authorized circumventions and non-authorized circumventions. First, the court has the facts wrong. The MPAA and its constituent studios have no authority to license CSS, that authority belongs to the DVDCCA. The licensing involved in CSS is quite complex, and needs to be dealt with more carefully with regard to the legal reasoning. Indeed, if the copyright holders were in fact the sole licensees of CSS, that would raise interesting antitrust concerns. Luckily for the studios, they do not license CSS. Second, if a use is licensed, it is not circumvention. Circumvention implies that the use is unauthorized. Thus, the distinction fails. However, even if the distinction were valid, the problem for Chamberlain becomes that they did not license the technology to another company. If Chamberlain had licensed the technology to one other company, then the argument could be made that there are "authorized" and "unauthorized" circumventions. How the DMCA can be interpreted in this way, I don't understand.

The second distinction the judge attempts to create is that homeowners have the right to access their garage, thereby circumventing Chamberlain's GDO if necessary. However, as the Reimerdes court noted, this distinction is pure sophistry. The DMCA does not recognize anything except the rights of the copyright holder (with certain minor limitations). If the owner of the copyright in the GDO software does not authorize access, the owner of the garage is out of luck. They can enter the garage through other means, or even remove the GDO, but they are not permitted to activate the GDO software without the GDO software's copyright holder's permission. The judge claims that the DMCA does not require such a conclusion. Why not? Under Reimerdes, the court held that someone who accessed a legitimately purchased DVD using deCSS, even if the use were to watch the movie in private, was guilty of violating the DMCA. The judge's argument in the present case is mere assertion that rejects the ridiculous logic of the DMCA, however it is not much of an argument, if it can be characterized as an argument at all.

 
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Argh! (Score: 0)
by Anonymous on Wednesday, September 03 @ 16:31:29 EDT
Reading along I was upset at the previous cases which were cited. But everything seemed logical. A few times there were uses of MPAA-style terminology ("piracy" and "unlicensed devices"), but things were mostly ok.

Then, near the end he all of a sudden draws a distinction between DVDs and GDOs. Somehow the sale of a DVD to a user doesn't allow that user to authorize use of an "unauthorized" player, but GDOs, because they are connected to people's garages, somehow allow people to authorize access for "unauthorized" openers.

Crazy. Don't get me wrong, I'm happy that the DMCA didn't give Chamberlain a home run. But I'd like things to be consistent. Please, judges, when something crazy comes out of the DMCA and you want to spare us from the consequences, THOW THE WHOLE THING OUT. Do it in a consistent and meaningful way!


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Re: Judge Asserts Pseudo Distinction to Preserve DMCA (Score: 0)
by Anonymous on Thursday, September 04 @ 06:58:02 EDT
You might be being a bit too critical of the judge here. To me it seemed like he was just trying to fashion a creative way to get around a law that he believed had a practically stupid result. The history of judicial statutory interpretation is rife with this kind of strained interpretation where judges try to correct legislation that they sense, correctly, cannot possibly mean what they read it to mean.

I think the judge deserves some credit for being creative here and punching some useful holes in the application of Reimerdes. Are you aware if anyone filed an amicus brief that offered him a better solution?


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Re: Judge Asserts Pseudo Distinction to Preserve DMCA (Score: 0)
by Anonymous on Thursday, September 04 @ 11:22:35 EDT
I wish that Chamberlain won. Hopefully they will appeal and win (based in part on the arguments the author mentioned).

I think that the only way to get popular pressure to remove the DMCA is for judges to is legally correct, but patently absurd rulings. Especially on items in the atom-space where the "everyperson" can see, and understand the absurdity.

Just my $0.02CDN, $1.0E^-7 USD

bwh


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Simple Distinction (Score: 0)
by Anonymous on Thursday, September 04 @ 12:19:47 EDT
There is one simple distinction between the Remierdes/Corley case and this case.

In Corely, the access control provided "effective" access controls against access to a copyrighted work held by the copyright holder -- or a device to copy and (publicly) perform that work.

In this case, the access control provdes "effective" access controls over a third party's garage.

There's a whopping big element of 1201(a) or (b)(1) missing there.

The access control in Corley was targeted at protection of a copyrighted work -- the work of authorship. Even the DVD player, if protected, was still control of copying and [public] performance rights. Hence it was effective in protecting a right of the copyright holder. This all assumes that Judge Newman was correct in his reasoning upholding the DMCA to begin with, which may or may not be a reasonable assumption based on where your paycheck comes from.

In this case, the access control was targeted at protection from unauthorized access to a garage. While the design and organization of your garage may certainly meet the Feist standard for copyrightability, the plaintiff in that case does not own the copyright on the garage -- the "infringing" end user does.

Additionally, since the principal access control in this case does not seem to deal with the rights of the copyright holder (using a third party clicker to instruct the garage door opener to open may be unauthorized USE of a copyrighted work -- the software of the opener - but it is not copying, public distribution, public performance, public display or a derivative work and hence not a copyright infringing activity), I'm not sure of the long term viability of a DMCA claim in this situation.

On the other hand, a copyright claim based on the validity of copyright (or permissibility of fair use of) reverse engineering a simple "open" handshake signal is up in the air, hence really not a basis for "reasonable likelihood of success" on the merits.


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Re: Judge Asserts Pseudo Distinction to Preserve DMCA (Score: 0)
by Anonymous on Thursday, September 04 @ 13:07:38 EDT
I think you're not being fair to the courton the second point. Itwasn't saying that there's no violation because owners have the right to access their garages. He was saying that, given the historical practices in the GDO industry in which consumers reasonably expected to be able to buy replacement universal remotes from any supplier, the consumer could have an implied license to access the program using a replacement GDO, thus the competing GDO wasn't circumvention. Regardless of the details of the CSS licensing regime, an implied license might exist in the GDO industry that certainly doesn't in the DVD industry. It's not a beautiful distinction by any means, but it's not as dumb as all that.

You didn't even mention the really silly argument: maybe the computer program isn't copyrighted? Yeah, right.

Rebecca Tushnet


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