Lawyer Article

Published in the September 28, 2004 issue of Southeast Tech Wire.

We assume that when you buy a product, you have the right to use it as intended. If you buy a computer printer, you can print with it using any cartridge that works. If you buy an electronic garage door opening system, you should be able to use any remote opener you want? And what about universal television/DVD/audio remotes?

Thanks to the Digital Millennium Copyright Act, those assumptions are not so simple. But at the end of last month a federal court clarified the rules in a way that may help consumers.

The U.S. Court of Appeals for the Federal circuit held, in upholding the lower federal court ruling, that an original garage door opener manufacturing company could not use the DMCA restrictions to keep a competitor's opening device off the market just because the competitor's device could be set to the plaintiff's doors. Previous federal rulings had put this decision in doubt.

But the court in Chamberlain Group v. Skylink Technologies, Inc. upheld that consumers have the inherent right to use the software embedded in a device they purchase, even if they are using it with competitor's technology. Chamberlain had never alleged that Skylink's opener infringed on its copyrights, so the court did not have to address direct copyright infringement.

Since the passage of the DMCA, consumer advocates have expressed justifiable fear that the DMCA's provisions protecting copyright holders from technical circumvention would be used to severely limit consumer activity previously defined as fair use. And, true to the fears of these advocates, the DMCA's anti-circumvention provisions had been used by copyright holders to extend their rights to previously unknown levels and to intimidate competition from entering their markets.

Before the DMCA, the federal courts had passed the Sony Betamax rule, which essentially held that a technology that has legitimate purposes will not be automatically banned just because it could be used for purposes that infringed on copyrights. With the DMCA Congress took aim at this rule and prohibited the manufacture or sale of technology that is "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." So that a technology that is used to gain access to a copyrighted and encrypted computer program can be found illegal under the DMCA despite any of its otherwise benign applications.

A series of early cases involving Lexmark printers, Sony games and RealNetworks software interpreted the DMCA language to limit technologies that might have both benign (non-infringing) and maleficent (infringing) functions. However, the Chamberlain case reversed this trend, while specifically distinguishing the significant DMCA cases that came before.

Chamberlain tried to argue that the DMCA protections created a new property right for copyright holders, but that position was roundly rejected by the court. The Chamberlain Court noted that the plaintiff's position '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 attempt to leverage its sales into aftermarket monopolies" a practice prohibited by antitrust and copyright laws prohibit.

The Court held that the DMCA does not "divest the public of the property rights that the Copyright Act has long granted to the public."