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DMCA and protection
From: David Farber <dave () farber net>
Date: Mon, 16 Mar 2009 02:12:58 -0400

Begin forwarded message:

From: James Grimmelmann <james () grimmelmann net>
Date: March 15, 2009 11:20:58 PM EDT
To: dave () farber net, tracy.hall () alum mit edu
Subject: Re: [IP] Good Answer to Good question A bunch of comments on Apple Adds Still More DRM to iPod Shuffle - The Value Chain Again

From: Tracy Hall <tracy.hall () alum mit edu>
Date: March 15, 2009 7:47:05 PM EDT
To: dave () farber net
Subject: Re: [IP] Good question A bunch of comments on Apple Adds Still More DRM to iPod Shuffle - The Value Chain Again

If Apple follows Nintendo's lead, there *is* a precedence: copyright. The copy-protection that the original Nintendo games used was simply a device that contained a string, which Nintendo had the copyright to.

Regardless of *how* the device is reverse-engineered and implemented, it still needs to present the string to validate - which violates copyright. Another advantage is copyrights last for *much* longer than patents...

I used to think that, too, but the courts have rejected this argument. Here's a section from Lexmark v. Static Controls, the DMCA printer-cartridge case. On its way to the DMCA issue, the court held that validation strings are per se uncopyrightable:

"Generally speaking, "lock-out" codes fall on the functional-idea rather than the original-expression side of the copyright line. Manufacturers of interoperable devices such as computers and software, game consoles and video games, printers and toner cartridges, or automobiles and replacement parts may employ a security system to bar the use of unauthorized components. To "unlock" and permit operation of the primary device (i.e., the computer, the game console, the printer, the car), the component must contain either a certain code sequence or be able to respond appropriately to an authentication process. To the extent compatibility requires that a particular code sequence be included in the component device to permit its use, the merger and scenes a faire doctrines generally preclude the code sequence from obtaining copyright protection. See Sega Enters., 977 F. 2d at 1524 ("When specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement.") (quoting National Commission on New Technological Uses of Copyrighted Works, Final Report 20 (1979)) (emphasis added); Atari Games Corp. v. Nintendo of Am., Inc., 1993 U.S. Dist. LEXIS 6786, Nos. 88-4805 & 89-0027, 1993 WL 207548, at [**26] *1 (N.D. Cal. May 18, 1993) ("Atari III") ("Program code that is strictly necessary to achieve current compatibility presents a merger problem, almost by definition, and is thus excluded from the scope of any copyright.").

That last case in there -- Atari Games v. Nintendo of America -- is actually the Nintendo lockout chip litigation itself. Atari lost, not because it used Nintendo's unlock stream of bits, but because it copied the program that produced that stream, including sections not necessary to unlock the console. The court concluded that Atari's story about clean-room engineering based on purely functional requirements was a lie.


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