Thursday, September 30, 2004

Skylink: The Meaning of "access", and Other Ways to Lose...

UPDATE #2: Apparently, the recent ruling in the Lexmark case involves "access" issues. Ed Felten has a nice write-up on his blog.

To my knowledge, the term "access" isn't defined in the US Copyright Code... This is a problem.

The only reasonable definition I can come up with is that "access" must mean the rendering of a protected work into a form that can be directly perceived by the end-user. This definition would still allow technology like CSS to be considered a "protection measure" under the DMCA, and yet prevent DMCA abuses a la Lexmark.

It could also affect the copyright landscape with respect to computer software (executable code, not human-readable source code). Oh well, you can't win them all...


UPDATE #1: Ernest Miller has a posting on about the Blizzard v. BNETD case that resonates with this. Here's what he wrote. From the brief excerpts in Ernest's, it looks like the Judge in that case doesn't understand "access" either.


Chamberlain argued in it's DMCA case against Skylink that their "rolling-code" system was a "technical measure that effectively controlled access" to the software in their garage door opener. They also claimed that the software in their GDO was protected by copyright, and they provided the copyright registration to prove it.

The issue of whether or not the copyright was valid was never reached by this case because the court was able to rule against the plaintiff purely on the authorization issue. Skylink never challeged the copyright either, so the following issues were never raised:
  1. Chamberlain customers have never had "access" to the GDO software, and
  2. Functional aspects of computer software are not protected by Copyright
The true meaning of "access":

In every other instance of a "protected work" that I can think of, the act of "accessing" a protected work involves rendering the work into a form that can be directly perceived by the consumer. You have to be able to "hear" the music, or "see" the book.

The Chamberlain GDO software is never rendered in any form we can perceive, so exactly how have we "accessed" it? It's true that we see the garage door open and close, but that's merely a functional result of the softwares' activity and not a direct observation of the activity itself.

Chamberlain customers never had "access" to the GDO software, so the argument that the "rolling codes" qualify as a "technical measure" under the DMCA would (IANAL!) fail, prima facia.

Abstraction, Filtration, Comparison:

Another way for Chamberlain to lose, even assuming the Court didn't buy my "access" argument, would be throught the AFC test. The AFC test was originally developed during Computer Associates v. Altai and, more recently, is being tossed back and forth in the SCO v. IBM case. This case, and others, set the stage for the following principle:
The functional aspects of computer software are not protected by Copyright.
In order for this to work, Skylink would have to challenge the idea that Chamberlains' "rolling codes" actually accesses anything that merits Copyright protection.


Chamberlains' case against Skylink fails on so many levels it's hard to keep track of them all... Chamberlain lost on the issue of authorized access, but I'm confident they would have also lost because they misunderstand what "access" really means, and because they forgot (or ignored) that functional aspects of computer software are not protected by Copyright. Functional aspects of computer software are protected by Patent Law.

Don't worry. I have no interest in talking about software patents here...