Garage door openers survive appeal

[Posted September 1, 2004 by corbet]

Remember the Chamberlain v. Skylink case? It is a DMCA lawsuit filed by Chamberlain, which argued that Skylink, by virtue of having made remotes which interoperate with Chamberlain's garage door openers, had violated the anticircumvention provisions of the DMCA. That line of reasoning was rejected by the court one year ago, mostly because Chamberlain had not explicitly prohibited the use of competing remotes.

Now an appeals court has had its say; the ruling is available in PDF format. Skylink has won once again, and the appeals judge has drawn some lines around the behavior which the DMCA can control. The result is, perhaps, an improvement in the situation, but the basic nature of the DMCA remains unchanged.

The judge has ruled that circumvention is not, in itself, a crime; for the DMCA to apply, circumvention must be associated with an actual act of infringement. That was not the case in the Chamberlain case:

The plain language of the statue [DMCA] therefore requires that a plaintiff alleging circumvention (or trafficking) to prove that the defendant's access was unauthorized -- a significant burden where, as here, the copyright laws authorize consumers to use the copy of Chamberlain's software embedded in the GDOs [garage door openers] that they purchased. The premise underlying this initial assignment of burden is that the copyright laws authorize members of the public to access a work, but not to copy it.

So, bypassing access control mechanisms to access a copyrighted work you have purchased is legal. Unfortunately, this ruling does not go as far as one might like: under U.S. law, moving copyrighted information from a disk into main memory is an act of copying, not just an access. So this language is unlikely to, for example, make the legal problems experienced by DeCSS go away.

In the end, here's the court's interpretation of when the anti-circumvention rule applies:

A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of a valid copyright on a work, (2) effectively controlled by a technological measure, which has been circumvented, (3) that third parties can now access, (4) without authorization, in a manner that (5) infringes or facilitates infringing a right protected by the Copyright Act, because of a product that (6) the defendant either (i) designed or produced primarily for circumvention; (ii) made available despite only limited commercial significance other than circumvention; or (iii) marketed for use in circumvention of the controlling technological measure.

That is a tighter reading than we have seen before, but it still leaves things open. Code which can be used for circumvention of an access control mechanism can violate the law if it has "limited commercial significance." How long will it take for somebody to argue that code released under a free license cannot have commercial significance?

In the end, a defeat for a DMCA plaintiff is a good thing. But this case has not brought about the sort of change that many in the community would like to see. That kind of change, it seems, can only be made by the legislative branch.

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Garage door openers survive appeal

Posted Sep 2, 2004 12:19 UTC (Thu) by utoddl (guest, #1232) [Link] (1 responses)

Anyone care to speculate how this ruling might apply to the Lexmark v. Static Control Components case? You may recall SCC (in Sanford, NC, my home town) makes among other things replacement printer cartridges. Lexmark cartridges' communication with Lexmark printers was held to be protected by DMCA, and SCC's carts evidently violate the DMCA by tricking the printer into, er, printing. Ooh, those sneaky printer cartridges...

Garage door openers vs printer cartridges

Posted Sep 3, 2004 0:53 UTC (Fri) by giraffedata (guest, #1954) [Link]

In the garage door opener case, much was made of the fact that Chamberlain didn't specify at the time of purchase of the GDO that the buyer could use it only via a Chamberlain remote. That made accessing the GDO via a Skylink remote an authorized access, regardless of the fact that Skylink had to hack the GDO in order to do it.

(What I've always wondered about this case is what causing a program to run inside a GDO has to do with copyright. Where's the copying?)

Is it the same with Lexmark? Does the printer box say, "Only for use with Lexmark cartridges? My guess is yes, because it's a basic part of a printer business plan (whereas Chamberlain probably never thought of it).

Garage door openers survive appeal

Posted Sep 2, 2004 15:44 UTC (Thu) by AJWM (guest, #15888) [Link] (2 responses)

Unfortunately, this ruling does not go as far as one might like: under U.S. law, moving copyrighted information from a disk into main memory is an act of copying, not just an access.

Actually, it's my understanding that the DMCA specifically permits "copying" from disk to memory. In any case, viewing a DVD, unlike running a program, doesn't require loading the whole copyrighted work into memory at once, or even a whole VOB file. (Disk cacheing aside).

Copying to memory

Posted Sep 2, 2004 16:31 UTC (Thu) by ncm (guest, #165) [Link] (1 responses)

The Uniform Commercial Code, in the US, implies that the publisher has licensed you to take whatever measures are needed to make use of the product you paid for. To avoid that they would have to clearly indicate, before they took your money, what restrictions they were hoping to make. Even then, they might not have the right to make the restriction (although they often try to fool you). That's why shrink-wrap licenses are waste paper, and click-through licenses need not be read.

The claim that reading from disc to memory counts as copying under copyright seems unlikely to withstand future court decisions. Copyright is meant to apply to publication (and, lately, public performance). The Sony decision should have made that clear enough. Copying to RAM is so far from publication it's hard to imagine what the judge could have been smoking.

The above should not be taken as legal advice.

Copying to memory

Posted Sep 3, 2004 1:02 UTC (Fri) by giraffedata (guest, #1954) [Link]

they would have to clearly indicate, before they took your money, what restrictions they were hoping to make. ... That's why shrink-wrap licenses are waste paper,

That's what the judge in the one great shrink wrap case (the one with the phone book on a disk) said, and that the US circuit court rejected on appeal. The appeals court said it has always been customary to exchange money and mostly cement a deal before the terms are all known. He gave as examples 1) an insurance policy -- you buy insurance and get the policy in the mail two weeks later. If you don't like what you read, you can rescind; and 2) a concert ticket. You order it on the phone, and when it comes the fine print on the back says you can't take a camera in. If you disagree, you can get your money back. Otherwise, you can't take a camera in.

Sounds to me like shrink wrap is on pretty sound footing.

and click-through licenses need not be read.

It's even less of an argument for click-through, since you do the clicking (and presumably reading) before money changes hands or the deal is otherwise finalized.

Garage door openers survive appeal

Posted Sep 2, 2004 15:50 UTC (Thu) by AJWM (guest, #15888) [Link]

How long will it take for somebody to argue that code released under a free license cannot have commercial significance?

That may well have already happened, but it's a specious argument: ask vendors of captive, er, proprietary software if their free software competition is of no commercial significance. Microsoft clearly argued the opposite during the anti-trust trial. Red Hat, SUSE, MySQL and others would also argue the point.