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DRM critics claim that Apple must be forced to open up or license its iTunes technological protocols, or in other words, hand over the jewels. Personally, I use Sony music services and products, but rather than stand by and see a company that has brought consumers many excellent products get bashed, I say lets consider other options...
In The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering for Interoperability Purposes, ExpressO Preprint Series. Working Paper 975, (February 17, 2006) Professor Dan Laster of the University of Washington posits that whereas courts and scholars have looked for mass market license preemption for Interoperability Reverse Engineering from copyright law, patent law provides the proper legal framework. With the statutory position of software patents no longer under question, recent case law and other factors “strongly suggests that patent law”: should preempt contract law when it is merely an instrument to try to patentize trade secret information…. a reasonable line between the policy of freedom of contract to prevent free riding by cloning trade secrets and the competing interests in competition and Interoperability, limiting patent preemption or state public policy invalidation to the narrow case of terms preventing Reverse Engineering for Interoperability best balances the competing interests, and is consistent with recent Congressional intent reflected in Section 1201(f) of the DMCA. Laster 34. The paper has implications for Interoperability Reverse Engineering such programs as iTunes, a central target of current copyright and DRM debates. Hence, although fascinating overall, I’d like to focus only on the DMCA implications of Laster’s article. Comparing it with one recently released by Tim Lee and the Cato Institute, there is a difference of opinion on the DMCA section 1201(f)(1,2) Reverse Engineering exception.
Tim writes, in Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act (Lee), that the Reverse Engineering exception in the DMCA 1201(f) "is too vague to offer meaningful protection for innovators seeking to build comparable products." Lee 8. He continues that as " long as the precise scope of the Reverse Engineering exception remains murky, most small developers will decline to exercise it out of fear that their products might be declared illegal in the future." Lee 9.
Well, Tim might have real concerns, but many things in the technology industries take place under unclear legal interpretation, such as the GPL and the mixing of proprietary technology with various other open source licenses.
Yet, I question Tim's reading of the DMCA.
Tim is right that "any product that achieves Interoperability against the wishes of the creator of another product is circumventing the DRM scheme." Lee 8. Tim also adds that the DMCA “gives no clear guidance on how to distinguish enabling Interoperability of an independently created computer program, (which is permitted) from circumventing a technological measure (which is prohibited) ."Lee 8.
There may be no need to make the distinction Tim finds so significant as long as Reverse Engineering is for the purpose of Interoperability; thats why 1201(f) is called an "exception."
Laster looks with more visibility on Interoperability Reverse Engineering under the DMCA, calling section 1201(f) “a federal policy” supporting this specific activity. Laster 33. Further, Laster cites Congressional intent in DMCA section 1201(f) to not only afford access to DRM protected Interoperability information, but to also reach past licensing restrictions to do so: "the federal interest is so strong that arguably Congress has preempted contract terms to the contrary where a company circumvents technological protection of a copyrighted work in-house so that it can develop an interoperable product." Laster 57. On Tim's concern of disseminating Interoperable products that circumvent DRM systems Laster points to 1201(f)(2), which issues “a defense where a person develops and employs a tool to circumvent for purposes of Interoperability.” Laster 53.
The purpose of Reverse Engineering is key. Laster only addresses that for Interoperability. Some in the technology industries assume that proprietary companies do not Reverse Engineer. They do. The important question then arises regarding why Reverse Engineering is done. Do you want to make a clone, develop an Interoperable product or merely enable use of pirated technologies? Each of these purposes determines the extent of information uncovered through Reverse Engineering, with less information needed for Interoperability. Laster 13. Specifically, the cloner (and pirate) “…reverse engineers a competitor’s software program to study secrets throughout the original technologist’s program… the cloner then copies and uses various secrets in developing its product and free rides on the R&D…” Laster 15. By contrast, the Interoperability developer: “… seeks to develop a program that will interoperate with the targeted program. Reverse Engineering is limited to discovery, study and analysis of the targeted program’s Interoperability information.” Laster 15.
Whether right or wrong, Laster's arguments will be tested by the courts (as will this essay). However, his view of the DMCA is very sensible given the purpose and language of the statute. The paper should at least encourage Apple's competitors to consider developing comparable music products and services (they already exist by the way) whether from scratch, creating offerings interoperale with Apple's existing line, or networking with other companies for interoperable cross-brands. These approaches are more competition and consumer focused than targeting one company for bringing successful business to market. Hopefully, the DMCA will allow these options.
posted by Noel Le @ 3:36 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA, DRM & Watermarks, etc.
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