Skylink: Copying vs. Authorized Access

Skylink Declares "Rip, Mix, Burn" Legal.
"Rip, Mix, Share" Still Has Problems...

On a Personal Note

I have to ask myself sometimes, why am I spending hours and hours dissecting a legal document when my skills lie in a completely different area (physics and computers). It's because I'm outraged. Outraged at what I believe to be major abuses of Copyright. The idea of using Copyright to prevent researchers from publishing, inventing, or coding is just wrong. It's built up to the point that I have to do something so, among other things, I'm doing this blog.

You don't get to be a good physicist or a good computer scientist without being curious about how things work. If you don't know how it works, it bugs you. Sometimes it bugs you so much that you have to take it apart to see how it works. Once you know how it works, you might see ways to make those pieces do something new, or how to build it better.

Now imagine someone telling you that you're not allowed to understand how it works, and if you did understand it, then you're not allowed to talk about it, or you're not allowed to build it on your own. What they're trying to do is control what you can think about, what ideas you can share with your peers, what papers you can publish... If there's any way to seriously offend a researcher or academic, just try to tell them that they can't publish a paper. That's happened to several researchers already. I just can't see how preventing research, publications, and inventions is going to "promote the progress of science and the useful arts."

Background

The Chamberlain Group (Chamberlain) makes a line of garage door openers. Skylink Technologies makes, among other things, "universal" remotes for garage door openers. If your Chamberlain remote breaks, or you lose it, you can buy one from Skylink and use it to open your garage.

Chamberlain, of course, doesn't like this. They'd rather you buy a new remote from them. Wouldn't it be great for Chamberlain if there was some way to establish a monopoly on aftermarket spare parts?

Well, that's exactly what the Chamberlain tried to do when it sued Skylink under the DMCA for selling garage door openers that bypass the security features they built into their product. Specifically, they sued under section 1201(a)(2) of the DMCA. That's the part that says you can't sell devices that bypass (circumvent) technical measures that "effectively control access to a work".

Just for reference, here is what that section of the DMCA says:

17 U.S.C. § 1201 Circumvention of copyright protection systems (DMCA)

1. Violations regarding circumvention of technological measures.
   1. (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title...
   2. No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that
      1. is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
      2. has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
      3. is marketed by that person or another acting in concert with that person with that person s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
   3. As used in this subsection -
      1. to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
      2. a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

I'm very happy to see that Chamberlain lost. What I'm really excited about with this case is that I think the legal framework developed in Skylink can be use to limit or reverse the rather unsatisfactory outcomes (IMHO) of other Copyright cases like Universal v. Corley.

Just to get things going, here's a partial quotation from the closing remarks of the case:

The DMCA does not create a new property right for copyright owners. Nor, for that matter, does it divest the public of the property rights that the Copyright Act has long granted to the public. The anticircumvention and anti-trafficking provisions of the DMCA create new grounds of liability. A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker s device enables either copyright infringement or a prohibited circumvention.

The Skylink Test

Anyone claiming a violation of § 1201(a)(2) must be able to prove the following things:

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.
   

The above five points are quoted directly from the ruling (pg. 42, although I have changed the emphasis slightly), and makes it explicitly clear that you must prove ALL five elements for your claim to succeed. Chamberlains' claim failed on the last two points, that's why they lost the appeal.

Consequences

The closing remarks make it perfectly clear that an alleged cirumvention has to be tied to a use of the work that the copyright holder is allowed to withhold. In the Skylink case, Chamberlain argued that because they had implemented a technical measure, the DMCA gave them the power to prevent its customers from using their own garage openers.

The Court of Appeals didn't agree, however, and said that Chamberlains' interpretation of the DMCA "borders on the irrational." Honest, I didn't make that up, it's right there on page 36. The ruling goes even further... ( I have paraphrased a bit, see pg. 43)

The Copyright Act authorizes consumers to access the copy of a protected work that they purchased. If the copy has been obtained legitimately, then consumers are immune from circumvention liability under§ 1201(a)(1).

In other words, it isn't circumvention if your copy of the protected work is legitimate. The District Court found, and the Appeals Court concurred, that an unconditional sale implies authorization. If you've got a legitimate copy of a protected work then Copyright law grants you unconditional access rights, and that also means that you are automatically authorized to bypass any technical measures that prevents access.

The only possible fly in the ointment is this little gotcha in the footnote on pg. 40:

It is not clear whether a consumer who circumvents a technological measure controlling access to a copyrighted work in a manner that enables uses permitted under the Copyright Act but prohibited by contract can be subject to liability under the DMCA.

Closing Remarks:

As far as I'm concerned, it boils down to this: As long as it's your music, or your dvd, you can rip, mix, and burn all you want as long as you don't violate the five points of the Skylink test.

It may be possible to prohibit this with a contract, but I don't think this is going to apply to the DVDs and CDs that you purchase down at Walmart. If someone tries to tell you, for instance, that you can't use DeCSS to play a DVD on your Linux computer, try asking them this question:

What legal agreement, contract, or Federal statute allows a copyright holder to restrict how a consumer can access a protected work that they have obtained legitimately?

I think the only correct answer to this question is that there isn't one.

That's all for now.

References:

1. [PDF] Chamberlain Group, Inc. v. Skylink Technologies, Inc.