Subject: FW: DMCA and garage door openers
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Fri, 7 Feb 2003 09:33:28 -0800

I'm copying below an email I received yesterday.  /Larry Rosen

James and Dorothy Brennan [dot4bren@adelphia.net] wrote:
> I suppose we are beginning to see more unintended ? 
> consequences of the DMCA.
> 
> In addition to securing patent protection on its garage door 
> opener, Chamberlain created two software programs entitled 
> "Code Guard Rolling Code" (original work) and a modification 
> of that program (derivative work).
> 
> In count IV of the complaint, Chamberlain alleges that the 
> original work and the derivative work contain a technological 
> measure that effectively controls access to the those works 
> and that the Defendant's universal door opener transmitter 
> circumvents that technological measure in violation of 17 
> U.S.C. Sec 1201(a) (Interestingly, in Count V The Plaintiff 
> avers that the advertisment of the Defendant stating that its 
> transmitter is compatible with the latest Rolling Code 
> Technology is misleading because the model 39 Universal 
> Transmitter is not compatible with such Rolling Code Technology)
> 
> That case is not the only instance where the DMCA has been 
> invoked in a suit that is fundamentally about an invention 
> covered by patent. Lexmark has invoked the DMCA in a suit 
> filed in federal district court in Lexington, Kentucky 
> against a firm that makes chips that permit third party toner 
> cartridges to work in its printers. According to press 
> reports ( http://www.theregister.co.uk/content/7/28811.html ) 
> Static Control's technology permits the unauthorized 
> remanufacturing of Lexmark Prebate toner cartridges. 
> Lexmark's complaint alleges that the microchips incorporate 
> infringing copies of its software and are being sold by 
> Static Control to defeat Lexmark's technological controls, 
> hence the invocation of the DMCA.
> 
> If Plaintiffs prevail on the 1201(a) issue, the DMCA will be 
> the tool of choice to prohibit "disassembly" of a computer 
> program for purposes held to be fair use by the 9th Circuit 
> in "Sega Enterprises v Accolade".
> 
> An inventor does not enjoy an exclusive right to make 
> improvements (derivative works) to his invention even during 
> the 20 year term of his patent. Does it really promote the 
> progress of science and the useful arts to grant the author 
> of a computer program and her heirs the exclusive right to 
> make improvements throughout the entire term of the copyright 
> on her program? Does 17 U.S.C. 1201 tend to stifle inovation 
> when applied to computer programs incorporated into patented 
> inventions? Is the current term of copyright appropriate for 
> computer programs? Should computer programs be protected 
> solely under the patent law or some other sui generis scheme 
> that takes into account the pace of technological progress?

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