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I've blogged my initial thoughts on the just-decided Skylink [PDF] case here: Landmark Federal Circuit Decision in Skylink Case Creates DMCA Balancing Test.
I believe the case has much inspiring language, though the actual practical implications of the case aren't nearly as positive and may serve to only strengthen the DMCA and reduce the need for reform. It is a complicated decision, leaving many unanswered questions, so there is bound to be much more discussion and debate.
As such, I'll be collecting other initial commentaries here, updating as necessary. By the way, the first wave of commentary comes before any news outlets have picked up the story. Advantage: blawgosphere.
UPDATE 0620 PT; 1130 PT (Still no mainstream media); 1145 PT C|Net News
Jason Schultz on Copyfight - pulling out some of the more interesting paragraphs from the decision (Skylink Wins! Fed. Cir. shoots down Chamberlain's DMCA claim):
It's a lengthy and interesting unanimous opinion by Judge Gajarsa, with some real gems reining in some of the overbroad and much-abused language of Section 1201:Seth Finkelstein, claiming to be an Eeyore (Chamberlain v. Skylink (Garage Door Openers), DMCA, and fair use):
All this is saying is, basically, that if there's no conflict between fair use and anything else, the DMCA can't be used as, in effect, a patent for any product. That's nice. It's good for other businesses. But it doesn't address the issues of DMCA reform, which are exactly that conflict.Finkelstein and I don't disagree as much as his response to my initial two-paragraph post would indicate. I guess my ambivalence about the decision didn't come through strong enough.
Derek Slater promises even more later, but here is initial reaction (Skylink Wins and so too might DMCA Reform Advocates):
Ernest is on the case - he captures my sentiments, particularly with regard to it inspiring and frustrating. I'm going to chew on this on my way to NY this evening - it's a lot to take in. The copy and access control distinction is indeed rather murky. The court boldly brought 1201(c) to bear (SethF, I imagine, is as surprised as I am). The court says anti-trust and misuse still apply, regardless of the DMCA. The court even says that Chamberlain's interpretation of the DMCA would make it borderline irrational under the test expressed in Eldred. [emphasis, links in original]Wendy Seltzer on EFF's Deeplinks in a brief note (DMCA Doesn't Lock Garage Doors, Fed. Circuit Affirms):
With its reading of fair use, "authorization," and the dangers of copyright misuse by those who would block interoperability, the Fed. Circuit adds some important nuance to the DMCA. "[T]he DMCA emphatically did not 'fundamentally alter' the legal landscape governing the reasonable expectations of consumers or competitors."James Grimmelmann on LawMeme (Federal Circuit Adds a Rule of Reason to the DMCA):
As I see it, under the district court's reading, a future Chamberlain might have been able to strip the "authorization" by drawing up the right warranties. But now, since fair use almost certainly shields the consumers here from any copyright claims no matter what Chamberlain says, the DMCA claim just plain fails. This case is a reverse Aimster: someone took one appeal too many and wound up watching the circuit judges do some clever (or perhaps, too-clever) interpretation to come out with a balancing test that's a disaster for the appellant's putative allies.
UPDATE 1 - 0620 PT
Anyway, the court delivered the clearest and most ringing condemnation of the overbroad application of the DMCA yet:Techdirt (Court Opens Garage Doors, But Sets Murky Precedent)
The court basically wants to establish some sort of balancing "test" for the DMCA. However, the DMCA and certain decisions associated with it are fairly problematic to begin with, so the test is somewhat convoluted and not entirely reasonable. The good part is that the court seems to recognize just how troublesome the DMCA is as written. The problem is that they don't really know what to do about it to bring it back in line with where it should be to avoid its misuse for anti-competitive purposes. It sounds like a bit of cognitive dissonance as the court tried to resolve the realization that the law really was as bad as some made it out to be with the idea that Congress couldn't possibly have meant for it to be that bad.UPDATE 2 - 1130 PT
Dennis Crouch, who broke the story and who I linked to in my original post, but forgot to add here (Federal Circuit: DMCA does not create a new property right for copyright owners):
In a well reasoned opinion, the Federal Circuit (GAJARSA) affirmed a district court's dismissal of a suit arising under anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA).....The court's basic premise is that an element of a DMCA cause of action is an underlying copyright violation -- without such a violation, there can be no remedy.Jesse Walker on Reason's Hit and Run with a very brief post (Skylink Survives)
The courts have brought back a decision in the Skylink case, an important intellectual-property skirmish involving garage-door openers. (And you thought all the copyright wars were over Buffy fan fiction!)Engadget (Skylink: 1, DCMA: 23,040,923,410)
Well, it’s a start: it was ruled today that Skylink successfully defended itself from the DCMA-wielding Chamberlain. If you’re not familiar with the case, Skylink, who manufactures 3rd party garage door openers, reverse-engineered Chamberlain’s garage door devices and made their own universal openers for Chamberlain’s equipment (think universal remotes for garage doors). Of course, this is a very good thing that we’re not all of a sudden copyrighting things like garage door openers; but you have to wonder why Chamberlain would care, since you still have to buy their garage doors to begin with.Law Prof. Michael Madison has some very nice comments on the decision (Copyright in Everyday Things)
But still. The court relied in large part on what seems like an obvious proposition: consumers have the right to use objects that they buy (such as garage door opening systems), even when those objects contain embedded software. (There’s an important discussion of “access” as a legal interest divorced from copyright protection, but I’ll leave that alone for now.) For its part, Chamberlain hadn’t done or said anything to negate that expectation. So consumer “access” to the copyrighted control codes wasn’t unauthorized; it was part of the point. The sentence in the opinion that caught my eye is this one: “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. “Read the whole thing.
Pretty cool, no? But this is the same Federal Circuit that ruled in Bowers v. Baystate Technologies (via a panel of different judges) that enforced a “no reverse engineering” term in a software shrinkwrap license. Could Chamberlain put a shrinkwrap-style agreement on the boxes that contain its garage door openers, requiring that its consumers buy only Chamberlain-brand replacement remote controls?
Adam Thierer raises some interesting points on the Technology Liberation Front (DMCA Will Not Keep You From Opening Your Garage Door):
More importantly, this case re-affirmed some fundamental principles found in the interesting and important case of Sega Enterprises, Ltd. v. Accolade (9th Cir. 1992).In Sega, the court held that reverse engineering could be considered fair use when it was the only way to achieving interoperability with the system in question. If memory serves me right, Accolade had opened up and studied Sega video game cartridges to figure out how to develop their own line of games for the old Sega Genesis video game platform. Sega didn’t appreciate that and sued. Luckily, they lost too.The Blog of the American Constitution Society has a brief note (Wednesday News Roundup)
The Federal Circuit Court of Appeals issued a ruling late yesterday that creates a balancing test for implementing the Digital Millenium Copyright Act. The court found that the DMCA contained provisions that would create absurd results if interpreted literally, so it identified a balancing test to save the statute consistent with its aims. The case involved whether a generic-brand garage door opener violated the DCMA's anti-circumvention provisions. The Electronic Frontier Fountation has more on the case including a copy of the decision.UPDATE 3 - 1145 PT
The Computing Research Policy Blog fears that chilling effects for computer scientists will continue (Court Rules 3rd Party Garage Door Openers Don't Violate DMCA).
"What the court says is that consumers have expectations about the way they'll be able to interact with products that they purchased," said Mulligan, whose clinic filed briefs siding with Skylink. "The DMCA didn't create this new right that undermines those expectations...This particular decision is very good for consumers and good for technology companies. It's going to promote competition."EFF's press release (Court Ruling Opens Door to More Competition in After-Market Parts):
Jennifer M. Urban, the lead attorney on the case at the Samuelson Clinic, said, "The court recognized that copyright law grants rights to consumers as well as copyright holders and held that the DMCA did not wipe those rights away."
"Chamberlain's lawsuit sought to stifle competition by misusing the DMCA," said Deirdre K. Mulligan, Director of the Samuelson Clinic. "Congress warned of such abuses and we're pleased that the court rejected this view to avoid harming consumers."
"When consumers buy a garage door opener, they have the right to use whatever remote they want with it, even one from another company," said Jason Schultz, EFF Staff Attorney and a co-author of the brief. "In Chamberlain's view, it's their remote or no remote. Thanks to this decision, they've now been shown that the law views it differently."
Tracked on September 1, 2004 04:42 PMDMCA case from Chromatic Musings If you're not reading Ernest Miller, you have been missing out -- he's absolutely turning into the go-to guy when it comes to the legalities of online music. Head and shoulders, he has the best roundup of opinion on the... [Read More]
Tracked on September 2, 2004 03:01 AMSkylink, and the Reverse Sony Rule from Freedom to Tinker This week the Federal Circuit court ruled that Chamberlain, a maker of garage door openers, cannot use the DMCA to stop Skylink, a competitor, from making universal remote controls that can operate Chamberlain openers. This upholds a lower court decisi... [Read More]
Tracked on September 2, 2004 04:00 PMDRM and Competition on Downstream Markets II from Blogs - Stefan Bechtold The recent Chamberlain v. Skylink decision (see my earlier posting) has produced quite a lot of noise in the blogosphere.... [Read More]
Tracked on September 2, 2004 04:50 PMChamberlain v. Skylink in the Court of Public Opinion from The Importance of... What court of public opinion? The only people paying attention seem to be a smattering of the tech journals and IP law bloggers, with only a single major media source weighing in. Call me crazy, but I think this is... [Read More]
Tracked on September 2, 2004 06:31 PMThe Importance Of ... Law and IT: Garage Doors and the DMCA from The Importance of... Episode the third of my new audio series, The Importance Of ... Law and IT, is up on IT Conversations. This show focuses on the recent appellate decision on the DMCA's anti-circumvention provisions, Chamberlain Group, Inc. v. Skylink Technologies, Inc.... [Read More]
Tracked on September 8, 2004 05:02 PM