International Law

Michael Carrier: Innovation for the 21st Century: DMCA

By Karl-Friedrich Lenz

Michael A. Carrier sent me a copy of his book “Innovation for the 21st Century” for a book review. See also this “Blog Symposium” on the book at the “Truth on the Market” blog.

Third in line (see here for discussion of the first recommendation and here for the second) is the proposal on pages 193 to 197 to limit liability for anticircumvention to plaintiffs who show that

(1) the expressive copyrightable features of a product protected by a technical protective measure play an essential role in consumer demand for the item, and

(2) it would suffer a direct negative market effect from the challenged circumvention or distribution.

I hesitate to agree unconditionally with this proposal.
For one, American DRM law is complicated enough as it is. As Carrier correctly notes on 179, “the statute’s importance, unfortunately, is not matched by its readability”.

Adding the above test would complicate matters further. That test would also be difficult to apply. Plaintiffs would need to introduce polling data about subjective consumer motives in their briefs, and defendants would need to counter with their own polls, making litigation in the field much more expensive.

As Carrier’s analysis on pages 185 to 187 shows, American judges have shown enough common sense to throw out clearly abusive claims in the Lexmark and Skylink cases. As to the Davidson Associates case Carrier discusses on pages 187 to 190, any problem with the courts’ decisions in that case could be remedied more easily just by discussing the interpretation of the interoperability defense in 17 U.S.C. 1201 (f).

For European law, the proposal would not fit with the much simpler text in Article 7 c) of the 1991 Computer Program Copyright Directive, which is all there is on circumvention law for computer programs. The 2001 Copyright Directive does not apply to computer programs, as I have explained in an earlier post about the Skylink case. That text reads:

(c) any act of putting into circulation, or the possession for commercial purposes of, any means the sole intended purpose of which is to facilitate the unauthorized removal or circumvention of any technical device which may have been applied to protect a computer program.

Adding the above proposal would only complicate matters with a test that is neither clear nor workable.

Full post as published by Lenz Blog on September 21, 2009 (boomark / email).