DMCA and protection

[David Farber <dave () farber net>]

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
>
>
> David;
> 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.

James




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