[Discussioni] [DMCA] Causa Storagetek v CHE and David York - no al DMCA anticompetitivo (Era: Re: [c-what] DMCA colpisce ancora)
Andrea Glorioso
andrea a digitalpolicy.it
Gio 25 Ago 2005 11:13:44 CEST
Cari tutti,
[ cito l'intero messaggio precedente per dare il contesto, dato che si
parla del luglio 2004 ]
>>>>> "Andrea" == Andrea Glorioso <sama a miu-ft.org> writes:
> Da LawGeek:
> http://lawgeek.typepad.com/lawgeek/2004/07/dmca_hammer_com.html
> DMCA hammer comes down on tech service vendor
> This just in: A district court in Boston has used the DMCA to
> grant a preliminary injunction against a third party service
> vendor who tried to fix StorageTek tape library backup systems
> for legitimate purchasers of the system.
> How is this a DMCA violation? Well, it turns out that
> StorageTek allegedly uses some kind of algorithmic "key" to
> control access to its "Maintenance Code", the module that allows
> the service tech to debug the storage system. The court found
> that third party service techs who used the key without
> StorageTek's permission "circumvented" to gain access to the
> copyrighted code in violation of the DMCA, even though they had
> the explicit permission of the purchasers to fix their machines.
> What does this ruling mean? If it stands up on appeal, it means
> StorageTek has a monopoly on service for all of its machines. No
> independent vendor will be able to compete with them for service
> contracts because no independent vendor will be authorized to
> "access" the maintenance code necessary to debug the machine.
> The DMCA was meant to stop digital piracy, not inhibit
> legitimate competition in the computer services market. How many
> more markets will we allow this law to kill before someone fixes
> it?
> p.s. The Court also found, in a bizarre twist of logic, that
> while it is legal to load a program into RAM for repairs, it's
> illegal to allow it to persist in RAM while you fix it. I don't
> even know where to begin with that one.
La Corte d'Appello federale degli Stati Uniti ha stabilito che la
riparazione e il mantenimento del software di terze parti e` legale ai
sensi del Copyright Act, e soprattutto che il DMCA non puo` essere
utilizzato per citare in giudizio chi compie le sopracitate azioni,
qualora tali azioni non violino alcun diritto tutelato dalla legge sul
copyright.
Si tratta di un risultato importante, poiche` uno dei problemi
maggiori del DMCA (e, in misura minore, dell'EUCD e delle relative
implementazioni nazionali) e` proprio la possibilita` di impedire
attivita` assolutamente legali ai sensi delle normative sul copyright
e/o sul diritto d'autore, qualora vi sia una violazione delle norme
sulle "misure tecniche di protezione" (o TPM - Technical Protection
Measures).
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
[332]Copyfight
August 24, 2005
Fed. Circuit Smacks Down Bad DMCA Decision Re: Independent Repair
Techs[333] Email This Entry [334]Print This Entry
Posted by Jason Schultz
Hurray! Justice delayed ends up being justice rendered. Over a year
ago, StorageTek managed to convince a district court in Boston to
[335]misuse standard copyright law and the DMCA anticompetitively
and shut down an independent service vendor who offered repair and
maintenance on StorageTek machines. (By doing so, StorageTek was
able to leverage the vast majority of service contracts on its
library units for itself.)
Today, the Federal Circuit Court of Appeals [336]reversed [PDF] the
trial court's order, holding that third parties can lawfully repair
and maintain another company's software under [337]Section 117 of
the Copyright Act and, more importantly, that the DMCA cannot be
used to sue such vendors when the repair and maintanence itself
doesn't violate any rights under copyright law. The decision
follows up on the Court's previous vindication of Skylink in its
[338]DMCA case against Chamberlain over garage door openers.
Here are some of the choice quotes from the opinion:
In Chamberlain we held that when Congress enacted the DMCA, it
chose to create new causes of action for circumvention and for
trafficking in circumvention devices. Congress did not choose to
create new property rights. 381 F.3d at 1203. Accordingly, we
held that section 1201 prohibits only forms of access that bear a
reasonable relationship to the protections that the Copyright Act
otherwise affords copyright owners. Id. at 1202. A copyright
owner alleging a violation of section 1201(a) consequently must
prove that the circumvention of the technological measure either
infringes or facilitates infringing a right protected by the
Copyright Act. Id. at 1203.
...
We held above that it is unlikely StorageTek will succeed on the
merits of its copyright claim. To the extent that CHEs activities
do not constitute copyright infringement or facilitate copyright
infringement, StorageTek is foreclosed from maintaining an action
under the DMCA. See Chamberlain, 381 F.3d at 1202. That result
follows because the DMCA must be read in the context of the
Copyright Act, which balances the rights of the copyright owner
against the publics interest in having appropriate access to the
work. See id. at 1199 (the severance of access from [copyright]
protection . . . would also introduce a number of irreconcilable
problems in statutory construction); 17 U.S.C. § 1201(c)(1)
(Nothing in this section shall affect rights, remedies,
limitations, or defense to copyright infringement . . . .); see
also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
417, 429 (1984). Therefore, courts generally have found a
violation of the DMCA only when the alleged access was
intertwined with a right protected by the Copyright
Act. [citations ommited]; accord Universal City Studios
v. Corley, 273 F.3d 429, 435 (2d Cir. 2001) (explaining that
Congress enacted the DMCA to help copyright owners protect their
works from piracy). To the extent that StorageTeks rights under
copyright law are not at risk, the DMCA does not create a new
source of liability.
Even if StorageTek were able to prove that the automatic copying
of the software into RAM constituted copyright infringement,
however, it would still have to show that the LEM or ELEM
facilitated that infringement. See Chamberlain, 381 F.3d at
1202. If such a nexus were not required, the careful balance that
Congress sought to achieve between the interests of content
creators and information users would be upset. See
H.R. Rep. No. 105-551, pt. 1, at 26.
...
A court must look at the threat that the unauthorized
circumvention potentially poses in each case to determine if
there is a connection between the circumvention and a right
protected by the Copyright Act.... In this case, the threat from
CHEs circumvention of GetKey is distinct from the dangers that
StorageTeks copyright protects against. See 17 U.S.C. § 106.
A good day for the public interest and for compeittion in the
software service market.
332. http://www.corante.com/copyfight/
333. http://www.corante.com/copyfight/archives/2005/08/24/fed_circuit_smacks_down_bad_dmca_decision_re_independent_repair_techs.php#zemail
334. http://www.corante.com/copyfight/archives/039297print.html
335. http://lawgeek.typepad.com/lawgeek/2004/07/dmca_hammer_com.html
336. http://fedcir.gov/opinions/04-1462.pdf
337. http://www.bitlaw.com/source/17usc/117.html
338. http://www.eff.org/legal/cases/Chamberlain_v_Skylink/
339. http://www.corante.com/copyfight/archives/cat_laws_and_regulations.php
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Ciao,
--
Andrea Glorioso andrea a digitalpolicy.it
+39 348 921 4379
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