dmca

As noted on Copyfight, the Cato Institute has released Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act, which takes the law to task for being anti-competitive and derides “Congressional interference in the market for digital rights management technologies.” As noted in the report:

Why won’t iTunes play on Rio MP3 players? Why are viewers forced to sit through previews on some DVDs when they could have fast-forwarded through them on video? Why is it impossible to cut and paste text on Adobe eBook? In a just released study for the Cato Institute, Tim Lee, a policy analyst at the Show-Me Institute, answers these questions and more.

The new legislation’s most profound effects will be on the evolution of digital media technologies. We have grown accustomed to, and benefit from, a high-tech world that is freewheeling, open-ended, and fiercely competitive. Silicon Valley is a place where upstarts like Apple, Netscape, and Google have gone from two-man operations to billion-dollar trendsetters seemingly overnight. The DMCA threatens to undermine that competitive spirit by giving industry incumbents a powerful legal weapon against new entrants.

This is yet another clear sign that the DMCA affects every single one of us, no matter what our political leanings may be.

As reported on Copyfight, the Sixth Circuit Court of Appeals overturned a ruling that was in favor of Lexmark against Static Controls, a company that makes replacement ink/toner cartridges. As the EFF explains “When Static Controls reverse-engineered the authentication procedure in order to enable refilled and remanufactured cartridges to work with Lexmark printers, Lexmark sued in Lexington, KY, claiming both copyright infringement and circumvention in violation of the DMCA.”

A snippet from the opinion:

> Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its “purpose.” Such a reading would ignore the precise language – “for the purpose of” – as well as the main point of the DMCA – to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures “for the purpose” of pirating works protected by the copyright statute.

Good news on the copyright front! Judge Gajarsa, presiding over the Federal Circuit Court of Appeals has upheld the district court summary judgment in Chamberlain v. Skylink. Ultimately, Chamberlain were trying to use copyright provisions of the DMCA to eliminate competition from Skylink, which makes spare garage door openers. Yes, those little remote controls you keep in your car to open your garage door. This case is a clear demonstration of the overreaching, and vague aspects of the DMCA, and how they could be harmful:

Chamberlain contends that Congress empowered manufacturers to prohibit consumers from using embedded software products in conjunction with competing products… unless the manufacturer provided consumers with explicit authorization. Chamberlain’s interpretation of the DMCA would therefore grant manufacturers broad exemptions from both the antitrust laws and the doctrine of copyright misuse.

If this judgment hadn’t gone the way of Skylink, items like universal remotes for your home electronics could quickly die out as companies copyright their devices. Gone would be the days of interoperability. The ruling is available (PDF) on the EFF Web site.

Some of my favorite parts of the ruling include (emphasis is mine):

Chamberlain’s proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would therefore allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work-or even selected copies of that copyrighted work. Again, this implication contradicts § 1201(c)(1) directly. Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke.

And:

In a similar vein, Chamberlain’s proposed construction would allow any manufacturer of any product to add a single copyrighted sentence or software fragment to its product, wrap the copyrighted material in a trivial “encryption” scheme, and thereby gain the right to restrict consumers’ rights to use its products in conjunction with competing products. In other words, Chamberlain’s construction of the DMCA would allow virtually any company to attempt to leverage its sales into aftermarket monopolies

Detailed coverage and commentary:

• Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test – Ernest Miller
• Commentaries on the Federal Circuit’s Skylink Decision – Ernest Miller
• Skylink Wins! Fed. Cir. Shoots Down Chamberlain’s DMCA Claim – Jason Schultz