Opening the garage door to Fair Use

Found on BoingBoing: One of the more publicized abuses of the DMCA is the case of the garage door opener company, the Chamberlain Group, that sued another company, Skylink Technologies, for manufacturing a door opener that acted as a sort of "universal remote," using a manufacturer-implemented backdoor that bypassed the door manufacturer's "rolling code" security system.

Well, an appeals court has just affirmed the summary judgment against Chamberlain by a lower court. Finding the wording of the DMCA a trifle ambiguous, the court took a look at its legislative history to get a better handle on what the framers meant to do with it; thus, the opinion (html version or PDF file) contains some quite good discussion of just what the DMCA is and is not meant to cover. I'm not sure that I entirely followed it, and I really hope that Lawrence Lessig will discuss and boil it down for us lay-people, but the gist of it seems to be that the DMCA doesn't create a new kind of property right, it just enhances the protections given to ordinary kinds of property. In my opinion, one of the most important bits of it is this paragraph:

Chamberlain's proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would therefore allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work-or even selected copies of that copyrighted work. Again, this implication contradicts § 1201(c)(1) directly. Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke.

I think that this opinion is going to be quoted in subsequent cases for quite some time to come. At first I thought that the DMCA might have been substantially defanged in terms of preventing fair use—except that I noticed that the opinion does refer to and agree with a case entitled Universal City Studios, Inc. v. Reimerdes , 111 F. Supp. 2d 294, 319 (S.D.N.Y. 2000) which seems to have found against deCSS, but deCSS (and its descendants) have the substantial noninfringing purpose of allowing fair-use access to DVDs—and also, some copying is fair use.

The facts here differ greatly from those in Reimerdes. [...] The court found that the defendant had violated 17 U.S.C. § 1201(a)(2)(A) because DeCSS had only one purpose: to decrypt CSS. Id. at 319, 346."

And then I noticed that Seth Finkelstein points out that the decision really doesn't do as much as it seems to at first glance; Ernest Miller also takes it frame by frame.

Oh well; as I've said before, I'm not a lawyer, so maybe I don't understand all the implications of these things. But checking legal weblogs for commentary seems to be a good place to start.