Copyright and Fair Use

Repeated abuse of a statute is a sign that the law itself is defective.

Without competition, an industry can stagnate due to high prices, slow product delivery and limited product innovation. Recent lawsuits that invoke the Digital Millennium Copyright Act seek to curb competition and therefore threaten to bring about those conditions. Passed in 1998, the DMCA was written to limit Internet piracy. But a provision of the law—Section 1201—prohibits individuals from circumventing technological measures erected by copyright holders to protect their works. It is this section that corporations are invoking to kill competition.

For example, Chamberlain Group, which makes garage-door-opener systems, sued Skylink Technologies, a manufacturer of universal remote controls for garage-door openers, citing the DMCA and alleging that Skylinks transmitter violated the anti-circumvention provision of the law. Last month, a federal judge in Illinois disagreed. The ruling was a step in the right direction.

"Under Chamberlains theory, any customer who loses his or her Chamberlain transmitter but manages to operate the opener either with a non-Chamberlain transmitter or by some other means of circumventing the rolling code has violated the DMCA," wrote Judge Rebecca Pallmeyer. "In this courts view, the statute does not require such a conclusion."

While we applaud Pallmeyers decision to dismiss the case, her ruling hinges on Chamberlains failure to publicly state that other companies products couldnt be used with its garage-door openers. By sidestepping the DMCA, she shed little light on how broadly the law can be applied.

We encourage the Cincinnati U.S. Court of Appeals for the 6th Circuit to address the use of the DMCA to curtail competition when it rules on an appeal by Static Control Components. In February, Lexmark International used the DMCA to win an injunction that stopped Static Control from making chips that let Lexmark toner cartridges be refilled.

The Skylink and Lexmark examples show that the DMCA is disturbingly susceptible to use as an anti-competitive weapon. Repeated abuse of a statute in this way is a sign that the law itself is defective. We call upon legislators and the courts to attain a balance that will promote the interests of copyright owners while respecting the rights of consumers. Thus, we back U.S. Rep. Rick Bouchers H.R. 107, under which circumvention for the purpose of exercising fair-use rights would be allowed. The Virginia Democrats bill would also allow making and distributing hardware and software if the technology is capable of substantial noninfringing use.

Precedents in fields as remote as garage-door openers can have far- reaching ramifications, especially in IT, where many innovations are copyrighted. Laws intended to protect against copyright infringement should not inhibit innovation and consumer choice.

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