A Copyfighter’s Musings

I hope you’ve been following the rest of the commentary on Skylink here. In particular, read doogieh (who, I think, is this guy) comparing the judge’s reasoning to copyright misuse and Ernest’s response.

Update: Another back and forth. See below for my updated comments (starting with Update). In addition, I found this really interesting article about copyright misuse and the Video Pipeline case. It talks about misuse not as antitrust but as anti-Constitution. Interesting.

A couple of points in response:

1. They’re both right in a way.  Doogieh’s right that one can choose to make a distinction between Skylink and Reimerdes because the former obviously protects “substantially” more than copyright while the latter at least bears some direct connection to a copyrighted work. The judge’s pseudo copyright misuse argument compensates for the broad interpretation of “access control” thus far. It ain’t pretty, but it’s better than nothing, and it fits reasonably with the copyright misuse doctrine as a whole.

Ernest is right that the access control provision probably is supposed to protect substantially more than copyight (follow the links in this post to Ernest’s writings to learn more about the history and intent of 1201). Protecting cable signal stealing and such does go beyond section 106. True, the scope of the provision isn’t defined, but if it were connected directly to section 106, then the 1201(b) “copy control” provision (which does speak in terms of section 106) would be somewhat redundant. Furthermore, Ernest is right that drawing lines between Skylink and Reimerdes is vague and arbitrary. Even if we can choose to draw this copyright misuse distinction between them, strictly speaking there isn’t one, and we don’t know where the distinction’s boundaries are; there will be absurd claims like Chamberlain’s, but there will also be many closer calls.

Doogieh’s right that, in the end, those points might not matter. Judges come up with kludges to save statutes all the time, choosing to draw lines like these to fit laws into “common sense.” We can argue about the validity of interpreting statutes that way and creating doctrines like copyright misuse – regardless, these techniques of tailoring a statute do exist, and this workaround is better that others (at least more fleshed out than the judge’s).

Update: Ernest makes some good points about statutory construction and how you should read 1201(a) in relation to (b) and the (a) exemptions. Again, a judge would really have to twist the DMCA to make this defense work.

He’s also right that, looking through the lens of Reimerdes, the DMCA probably precludes copyright misuse as a defense in the same way it precludes fair use. I think there might be room for a slight distinction there. The fair use defense looks at your intent when you circumvent, whereas copyright misuse analyzes whether there’s a valid copyright claim (and thus a DMCA claim) in the first place. The former failed because the language in the DMCA about fair use only means that the defense to copyright infringement is unchanged, but it’s eliminated as a defense to the DMCA. Since the copyright misuse claim is about copyright broadly, not really about the DMCA, it might work. A small distinction, but something a judge might pick up on if they’re already busy reading stuff into the DMCA. (Ernest says that it’s more like DMCA misuse, but I’m not sure why – Chamberlain’s misusing their copyright to make a DMCA claim that they can’t make. Perhaps his argument is that the misuse only revolves around the DMCA, and thus there’s little reason for a judge to invalidate the entire copyright. That makes some sense, and is part of the reason why judge’s are reluctant to use the misuse doctrine.)

At times, Ernest and doogieh are talking past each other. Ernie makes a positive claim that copyright misuse is a weak doctrine (that was my impression), but doogieh’s making a normative claim that this is a good way to beef it up.

2. Of course, the judge didn’t say copyright misuse – she said that this didn’t count as circumvention of an access control. On that point, she is obviously wrong as far as Reimerdes goes.

Copyright misuse generally would go beyond making a particular right (in this case, 1201(a)) inapplicable, instead invalidating the entire copyright for the period of misuse. So Doogieh’s argument, if applied as typical copyright misuse, would have broader implications.

3. I know of copyright misuse only because it’s generally in a long list of legal arguments (estoppel, implied license, unclean hands) that are often shot down in Internet copyright cases. So, I’m eager to see the article Doogieh’s planning. It would be interesting if the doctrine were applied broadly to misuse of DRM precluding fair use, reverse engineering, etc. So far, that hasn’t happened. See what I wrote way back about copyright misuse here. (That link isn’t working right now, so see the Google cache if that link doesn’t work.)

4. See here for the Lexmark copyright misuse argument Doogieh refers to.

Filed by Derek Slater at 1:39 pm under General news
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