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Ernest On Access Controls

Ernest Miller returns to Lawmeme to post about the recent denial of summary judgment in Chamberlain v. Skylink, the DMCA garage door opener debacle. As Ernest explains, it’s a good result with poor reasoning. In Lexmark, Reimerdes, Streambox, and Gamemasters, similar programs were defined as access controls, and the distinctions drawn by this judge are not that convincing.

Which is not to say the argument can’t be made – in fact, Ernest himself has made it several times. The access control provisions were targeted at people who didn’t legitimately have access to the copyrighted work, e.g. people illegally getting cable. Someone who buys a DVD theoretically has authorization to access the work, but, according to all court rulings except this one, you also need authorization to decrypt.

[added:] Ernest nails the most important problems with the judge’s logic. One other stems from the judge’s assertion that Chamberlain didn’t tell homeowners that they couldn’t use other products. Why should that make a difference if we’re assessing whether something controls access? It either does or it doesn’t, regardless of what homeowners knew. Similarly, why should historical interoperability matter? Read together with the judge’s commentary on CSS (and putting aside the problems of her logic there), does she mean to say that because Chamberlain didn’t specify which openers were authorized, all openers are implicitly authorized? I don’t understand why that would be.

[added:] The judge would have been better off explicitly disagreeing with the other cases rather than trying to distinguish them. Either way, it will take more detailed reasoning than this.

When reading the court hearing transcript, the reverse engineering exception seemed to be a better fit – I wonder why the judge didn’t go that route. Does it have something to do with this being a summary judgment?