A Little More on Skylink

You know, it’s still a lot to wrap my head around.  I would really like to first go back and read many DMCA articles and all the cases a little closer.  But this tentative assessment is going to have to do for now.


Prelim Points


First, I’m just going to assume you’ve read at least Ernest’s and Ed Felten’s posts – I’ll get to some of what they bring up, but not all of it.  The test that comes out of the court, more than simply allowing access devices or circumventions with purely non-infringing uses, created a test that examines whether the device or circumvention has a reasonable relation to a copyright-right. 



“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.”


Second, I can imagine someone arguing that, in reality, it’d be better to let the DMCA be as draconian as it is on its face; that way, it’ll be more likely that Congress will be forced to confront the DMCA in all its horribleness.  I guess it’s a fair argument. On the other hand, if the examples of the DMCA’s furthest overreaching and most unintended consequences become the basis for Congressional reworking, we might just end up with a slightly narrower statute.  In my view, it’s better to have this breathing room than nothing at all.


Problems in the Opinion


There are several ways in which the decision’s argument is lacking, even putting aside the clever, and sometimes misleading, ways they find this consistent with Reimerdes. Ernest notes a point of poor crafting, like deeming Reimerdes about an injunction for illegal copying, but a lot of the other stuff is just the judges being a little too clever.  I’ll get back to this piece more below.


As discussed by Ernest, the decision lacks a clear distinction between copy and access controls. Indeed, it seems they’re now almost one in the same.  The trafficking provisions now relate to devices that enable “copyright infringement” (1201(b)) or a “prohibited circumvention” (1201(a)).  Well, a prohibited circumvention is now “a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization” – which is basically another way of saying a potentially infringing use. 
What the court tried to do was ensure that in all cases there’s a nexus between the device or circumvention and infringement.  That’s a good thing, on some level.  On the other hand, it seemingly renders meaningless the separate, non-infringing related meaning of 1201(a).


Is there an alternative way they could have limited 1201(a) and kept the distinction intact?  Ernest has argued as much in the past.  I think the Skylink court put so much focus on the DMCA’s purpose of preventing piracy that, they missed the sort of “piracy,” e.g., black boxes for stealing cable, that 1201(a) was aimed at.  With Skylink’s reading of the DMCA, I’m not even sure when 1201(a) would reach that sort of act.


Also, if the DMCA was about rebalancing, why do they draw so much weight from 1201(c) and so little from all the statute’s exemptions, the Copyright Office triennial review, and the lack of provisions banning circumvention of copy controls?  Didn’t Congress try to keep the balance intact that way?  Why is this test required on top of that given Congressional intent?  I’m not saying that they’re wrong in drawing on 1201(c) this way, but this is a decent counterargument, I think.


A smell test with some broader applicability


Like the District Court, this court wanted to figure out a way to correct for Congress lack of clarity and foresight.  Unlike the District Court, this court actually came up with a test that makes some sense, is decently reasoned, and has applicability beyond this case.  No, it does not solve all the problems with the DMCA, but it does open the door to dealing with many of the most abusive, unintended consequences.   They focused on the DMCA as targeted at impeding copyright infringement.  When discussing the district court opinion and the potential for bringing a sort of misuse view into the picture, Doug Hudson pointed  out it’s not completely uncommon for courts to try to come up with balances when statutes are unclear like this.


Some people have put a lot of focus on the consumer expectations issue, saying that was the key. I disagree.  I think the court agreed with the district court’s assessment there and kept that door open for future cases. But, as the court clearly states, the key issue was the relationship between the circumvention at issue and a copyright-right.


Anti-trust and Misuse are back in the picture


With the importance of the balancing test, this section has been overlooked:



“Chamberlain’s construction of the DMCA would allow virtually any company to attempt to leverage its sales into aftermarket monopolies-a practice that both the antitrust laws, see Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 455 (1992), and the doctrine of copyright misuse, Assessment Techs. of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir. 2003), normally prohibit.  Even were we to assume arguendo that the DMCA’s anticircumvention provisions created a new property right, Chamberlain’s attempt to infer such an exemption from copyright misuse and antitrust liability would still be wrong…. Because nothing in Seventh Circuit law contradicts Data General, we similarly conclude that it is the standard that the Seventh Circuit would most likely follow. The DMCA, as part of the Copyright Act, does not limit the scope of the antitrust laws, either explicitly or implicitly.” 


That leaves open the door to further arguments against particular uses of the DMCA.  Misuse, esp., is pretty vague, but particularly relevant with regard to tying content to devices.


Also, though the court doesn’t reach the contracts issue, it’s worth noting that this is the same circuit that decided Bowers.  While having no bearing on the issue directly, the Skylink court’s general sentiments were very similar to the the Bowers dissenter’s:



“There is, moreover, no logical stopping point to the majority’s reasoning. The amici rightly question whether under our original opinion the first sale doctrine and a host of other limitations on copyright protection might be eliminated by shrinkwrap licenses in just this fashion. See Brief for Electric Frontier Foundation et al. as Amici Curiae 10. If by printing a few words on the outside of its product a party can eliminate the fair use defense, then it can also, by the same means, restrict a purchaser from asserting the “first sale” defense, embodied in 17 U.S.C. 109(a), or any other of the protections Congress has afforded the public in the Copyright Act. That means that, under the majority’s reasoning, state law could extensively undermine the protections of the Copyright Act.”


Now consider Skylink’s words:



“It is unlikely, however, that the Second Circuit meant to imply anything as drastic as wresting the concept of “access” from its context within the Copyright Act, as Chamberlain would now have us do. Were

BMI (not BMG!) Has Record Year

The movie industry had a record summer at the box office, despite a decline in ticket sales.  That’s pretty predictable, since broadband is not pervasive and watching a DivX download is not nearly as high quality as going to the theater.  So it’s not worth making too of this. 


It’s also not worth making too much of recent news that BMI has had a record year.  Maybe people are getting BMI confused with BMG.  The latter is a record company, the former is a performing rights organizations.  The former’s revenue is pretty small relative to the total revenue of the record companies.  These results are consistent with last year’s growth, spurred on in part by the ringtone bubble.  This revenue stream will likely be hit more slowly; although radio will lose relevance, licensing for TV will not fall off as quickly, and restaurants, live concerts, and other public places will still pay fees.


Which is not to say I agree with the “sky is falling” rhetoric of the music industry.  But we should keep these stats in perspective.

MS: On Second Thought, Put On These Handcuffs

Farhad Manjoo has a nice article up about the new MSN Music Store (via Frank).  At the very end, he notes a somewhat predictable turn of events: MS changed the language, noted by Fred, that advocated burning DRM-locked songs onto CD and then re-ripping into another, possibly unencrypted format.  It now reads simply:



“Unfortunately Apple refuses to support the popular Windows Media format on the iPod, choosing to only support their own proprietary DRM format. If you are an iPod owner and are unhappy about this, please send feedback to Apple and ask them to change their policy and interoperate with other music services. There are more than 70 portable audio devices that support MSN Music today, and we hope that someday Apple decides to join with the industry and support consumer choice.”


70 devices: wow! I mean, Microsoft has picked them all out for me ahead of time, probably put a little red bow on them, too.  What would I need interoperability and independent consumer choice for when Microsoft can shepherd me to approved devices?


Apparently. the businessmen had a chat with the techies.  I wonder if anyone raised their hand and reminded others that Windows Media DRM is also proprietary. Manjoo contacted Rob Bennett, the senior director of MSN Entertainment, who wrote back:



“I’m reviewing the language on the preview site now…. We absolutely don’t want to encourage people to circumvent the usage rights for music downloads. It is unfortunate that Apple still disables Windows Media support in the iPod (the firmware they license from PortalPlayer actually supports WMA but they turn it off), restricting their customers’ choice of where they download music. Our approach is very different, encouraging broad choice of many music services and many portable audio devices with the Windows Media format.”