FW: DMCA and garage door openers
Lawrence E. Rosen
lrosen at rosenlaw.com
Fri Feb 7 17:33:28 UTC 2003
I'm copying below an email I received yesterday. /Larry Rosen
James and Dorothy Brennan [dot4bren at adelphia.net] wrote:
> I suppose we are beginning to see more unintended ?
> consequences of the DMCA.
> In addition to securing patent protection on its garage door
> opener, Chamberlain created two software programs entitled
> "Code Guard Rolling Code" (original work) and a modification
> of that program (derivative work).
> In count IV of the complaint, Chamberlain alleges that the
> original work and the derivative work contain a technological
> measure that effectively controls access to the those works
> and that the Defendant's universal door opener transmitter
> circumvents that technological measure in violation of 17
> U.S.C. Sec 1201(a) (Interestingly, in Count V The Plaintiff
> avers that the advertisment of the Defendant stating that its
> transmitter is compatible with the latest Rolling Code
> Technology is misleading because the model 39 Universal
> Transmitter is not compatible with such Rolling Code Technology)
> That case is not the only instance where the DMCA has been
> invoked in a suit that is fundamentally about an invention
> covered by patent. Lexmark has invoked the DMCA in a suit
> filed in federal district court in Lexington, Kentucky
> against a firm that makes chips that permit third party toner
> cartridges to work in its printers. According to press
> reports ( http://www.theregister.co.uk/content/7/28811.html )
> Static Control's technology permits the unauthorized
> remanufacturing of Lexmark Prebate toner cartridges.
> Lexmark's complaint alleges that the microchips incorporate
> infringing copies of its software and are being sold by
> Static Control to defeat Lexmark's technological controls,
> hence the invocation of the DMCA.
> If Plaintiffs prevail on the 1201(a) issue, the DMCA will be
> the tool of choice to prohibit "disassembly" of a computer
> program for purposes held to be fair use by the 9th Circuit
> in "Sega Enterprises v Accolade".
> An inventor does not enjoy an exclusive right to make
> improvements (derivative works) to his invention even during
> the 20 year term of his patent. Does it really promote the
> progress of science and the useful arts to grant the author
> of a computer program and her heirs the exclusive right to
> make improvements throughout the entire term of the copyright
> on her program? Does 17 U.S.C. 1201 tend to stifle inovation
> when applied to computer programs incorporated into patented
> inventions? Is the current term of copyright appropriate for
> computer programs? Should computer programs be protected
> solely under the patent law or some other sui generis scheme
> that takes into account the pace of technological progress?
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