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Re: changing upstream's MODULE_LICENSE string in module source

On 2/25/06, Eduard Bloch <edi@gmx.de> wrote:
> exist.  Md raised his voice and he has a point, though a DMCA-threat in
> GPL context looks slightly absurd.


The authentication sequence, it is true, may well block one form of
"access"—the "ability to . . . make use of" the Printer Engine Program
by preventing the printer from functioning. But it does not block
another relevant form of "access"—the "ability to [ ] obtain" a copy
of the work or to "make use of" the literal elements of the program
(its code). Because the statute refers to "control[ling] access to a
work protected under this title," it does not naturally apply when the
"work protected under this title" is otherwise accessible. Just as one
would not say that a lock on the back door of a house "controls
access" to a house whose front door does not contain a lock and just
as one would not say that a lock on any door of a house "controls
access" to the house after its purchaser receives the key to the lock,
it does not make sense to say that this provision of the DMCA applies
to otherwise-readily-accessible copyrighted works.


In the essential setting where the DMCA applies, the copyright
protection operates on two planes: in the literal code governing the
work and in the visual or audio manifestation generated by the code's
execution. For example, the encoded data on CDs translates into music
and on DVDs into motion pictures, while the program commands in
software for video games or computers translate into some other visual
and audio manifestation. In the cases upon which Lexmark relies,
restricting "use" of the work means restricting consumers from making
use of the copyrightable expression in the work. See 321 Studios, 307
F. Supp. 2d at 1095 (movies contained on DVDs protected by an
encryption algorithm cannot be watched without a player that contains
an access key); Reimerdes, 111 F. Supp. 2d at 303 (same); Gamemasters,
87 F. Supp. 2d at 981 (Sony's game console prevented operation of
unauthorized video games). As shown above, the DMCA applies in these
settings when the product manufacturer prevents all access to the
copyrightable material and the alleged infringer responds by marketing
a device that circumvents the technological measure designed to guard
access to the copyrightable material.

The copyrightable expression in the Printer Engine Program, by
contrast, operates on only one plane: in the literal elements of the
program, its source and object code. Unlike the code underlying video
games or DVDs, "using" or executing the Printer Engine Program does
not in turn create any protected expression. Instead, the program's
output is purely functional: the Printer Engine Program "controls a
number of operations" in the Lexmark printer such as "paper feed[,]
paper movement[,] [and] motor control." Lexmark Br. at 9; cf. Lotus
Dev., 49 F.3d at 815 (determining that menu command hierarchy is an
uncopyrightable method of operation"). And unlike the code underlying
video games or DVDs, no encryption or other technological measure
prevents access to the Printer Engine Program. Presumably, it is
precisely because the Printer Engine Program is not a conduit to
protectable expression that explains why Lexmark (or any other printer
company) would not block access to the computer software that makes
the printer work. Because Lexmark's authentication sequence does not
restrict access to this literal code, the DMCA does not apply.


But our reasoning does not turn on the degree to which a measure
controls access to a work. It turns on the textual requirement that
the challenged circumvention device must indeed circumvent something,
which did not happen with the Printer Engine Program. Because Lexmark
has not directed any of its security efforts, through its
authentication sequence or otherwise, to ensuring that its copyrighted
work (the Printer Engine Program) cannot be read and copied, it cannot
lay claim to having put in place a "technological measure that
effectively controls access to a work protected under [the copyright
statute]." 17 U.S.C. § 1201(a)(2)(B).

Nor can Lexmark tenably claim that this reading of the statute fails
to respect Congress's purpose in enacting it. Congress enacted the
DMCA to implement the Copyright Treaty of the World Intellectual
Property Organization, and in doing so expressed concerns about the
threat of "massive piracy" of digital works due to "the ease with
which [they] can be copied and distributed worldwide virtually
instantaneously." S. Rep. No. 105-190, at 8 (1998). As Congress saw
it, "copyrighted works will most likely be encrypted and made
available to consumers once payment is made for access to a copy of
the work. [People] will try to profit from the works of others by
decoding the encrypted codes protecting  copyrighted works, or
engaging in the business of providing devices or services to enable
others to do so." H.R. Rep. No. 105-551, pt. 1, at 10. Backing with
legal sanctions "the efforts of copyright owners to protect their
works from piracy behind digital walls such as encryption codes or
password protections," Corley, 273 F.3d at 435, Congress noted, would
encourage copyright owners to make digital works more readily
available, see S. Rep. No. 105-190, at 8. See also Nimmer §

Nowhere in its deliberations over the DMCA did Congress express an
interest in creating liability for the circumvention of technological
measures designed to prevent consumers from using consumer goods while
leaving the copyrightable content of a work unprotected. In fact,
Congress added the interoperability provision in part to ensure that
the DMCA would not diminish the benefit to consumers of interoperable


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