Digital Millennium Competition Avoidance (DMCA)

EFF attorney and Copyfighter Jason Schultz has been on a roll recently identifying cases in which the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 1201, have been used not to protect copyright but (as critics claimed they would) to stifle competition. The basic issue here is that companies can prevent competitors from interoperating with their devices by implementing simple DRM handshakes. The classic example so far is Lexmark's use of the DMCA to prevent rivals from selling replacement toner cartridges (Lexmark invokes DMCA in toner suit). For more examples, see EFF's Unintended Consequences: Five Years under the DMCA. In the last week Schultz has pointed out four similar cases. Read on...

1 & 2) Unauthorized Accessory Detection. Apparently, both NEC and Sony are planning to incorporate software that will detect unauthorized third-party accessories, such as batteries, in their upcoming generation of consumer electronics devices (Camera & Cell Phone Batteries = Next DMCA Frontier?). The ostensible purpose is to prevent damage from inferior replacements, but the more likely reason is to capture the lucrative accessory market. The DMCA comes into play because any company trying to make compatible accessories will likely violate the DMCA.

This may be the most disturbing story of all because it indicates that this DMCA strategy is no longer a fringe (though generally effective) legal strategy, but is becoming more mainstream. With Sony and NEC adopting this tactic, other companies will be less hesitant to engage in these anti-competitive moves.

3) Unauthorized Third Party Software Maintenance. One would have thought that service monopolies went away a long time ago, but courts keep trying to bring them back (this time with a lot of help from Congress' poor legislative drafting). In this case, a third party service vendor fixes software and hardware (backup tape drives) that a customer has legitimately purchased. In order to perform maintenance, the service vendor must circumvent an access control. Bingo! DMCA violation. And, as Schultz notes, a district court in Boston agrees at least as far as to grant a preliminary injunction (DMCA hammer comes down on tech service vendor). One of the main problems with the DMCA is that it provides for very few exceptions to its broad language. Under the DMCA circumvention is illegal, period, whether it is for piracy or the fairest of fair uses (with some extremely limited exceptions that have yet to be tested). Read the decision: Storagetek v. Custom Hardware Engineering & Consulting [PDF]. It is a particularly lovely example of how to use the DMCA to achieve what copyright law would normally not permit.

The case also provides an excellent example of how to misinterpret 17 USC 117, which is supposed to permit computer maintenance without violating copyright, as Joe Gratz notes (DMCA As Tying Tool).

4) Garage Door Openers Redux. Chamberlain v. Skylink is the infamous garage door opener (GDO) case, in which a GDO manufacturer added some code to its openers ostensibly to prevent wardriving against its doors but was using it to prevent the sale of third-party garage door opener remotes (for those who need additional remotes or had lost the original). The district court ruled that it wasn't a violation of the DMCA. I believe that the ruling comported more with commonsense than the nonsensical law (Judge Asserts Pseudo Distinction to Preserve DMCA). I haven't changed my mind.

In any case, Schultz notes that the appeal doesn't seem to be going very well for Chamberlain (Fed. Circuit Panel Grills Chamberlain over Garage Door DMCA Claim). Unfortunately, until the court rules, I can't take much pleasure in Chamberlain's grilling. If the court upholds the pseudo-distinction created by the district judge, I don't think we are that much better off. Better, I think, to have the full ridiculousness of the DMCA on display than have judges carving exceptions that are, for the most part, unimportant.