Skylink, and the Reverse Sony Rule

This week the Federal Circuit court ruled that Chamberlain, a maker of garage door openers, cannot use the DMCA to stop Skylink, a competitor, from making universal remote controls that can operate Chamberlain openers. This upholds a lower court decision. (Click here for backstory.)

This is an important step in the legal system’s attempt to figure out what the DMCA means, and there has been much commentary in the blogosphere. Here is my take.

The heart of the decision is the court’s effort to figure out what exactly Congress intended when it passed the DMCA. Chamberlain’s argument was that the plain language of the DMCA gave it the right to sue anybody who made an interoperable remote control. The lower court ruled against Chamberlain, essentially because the outcome urged by Chamberlain would be ridiculous. (It would imply, for instance, that Chamberlain customers did not have the right to open their own garage doors without Chamberlain’s permission.) But the lower court had trouble finding a DMCA-based legal argument to support its conclusion. The appeals court now presents such an argument.

The court’s problem is how to resolve the tension between the parts of the DMCA that seem to uphold the traditional rights of users, such as fair use and interoperation, and the parts that seem to erode those rights. Previous courts have tried to ignore that tension, but this court faces it and tries to find a balance. The acknowledgement of this tension, and the court’s description of the very real harms of construing the DMCA too broadly, provide DMCA opponents with their favorite parts of the opinion.

For most of the opinion, before veering away at the last minute, the court seems to be heading toward a kind of reverse Sony rule. The original Sony rule, laid down by the Supreme Court in 1984, says that making and selling dual-use tools – tools that have both significant infringing uses and significant non-infringing uses – does not constitute contributory copyright infringement. (Selling tools that have only non-infringing uses is obviously lawful, and selling tools that have only infringing uses is contributory infringement.)

A reverse Sony rule would say that dual-use tools are DMCA violations, if they are circumvention tools (according to the DMCA’s definition). In flirting with the reverse Sony rule, the court hints that Congress, in passing the DMCA, meant to revise the Sony rule because of a perceived danger that future circumvention tools would tip the copyright balance too far against copyright owners. In other words, such a rule would say that the purpose of the DMCA anti-circumvention provisions was to reverse the Sony rule, but only for circumvention tools; the original Sony rule would still hold for non-circumvention tools.

In the end, the court backs away from the simple reverse-Sony interpretation of the DMCA, and makes a more limited finding that (1) tools whose only significant uses are non-infringing cannot violate the DMCA, and (2) in construing the DMCA, courts should balance the desire of Congress to protect the flanks of copyright owners’ rights, against users’ rights such as fair use and interoperation. In this case, the court said, the balancing test was easy, because Chamberlain’s rights as a copyright owner (e.g., the right to prevent infringing copying of Chamberlain’s software) were not at all threatened by Skylink’s behavior, so one side of the balancing scale was just empty. The court’s decision to leave us with a balancing test, rather than a more specific rule, seems motivated by caution, which seems like a wise approach in dealing with uncharted legal territory.

Of course, this entire exercise is predicated on the assumption that Congress had a clear idea what it meant to do in passing the DMCA. Based on what I have seen, that just isn’t the case. Many lawmakers have expressed surprise at some of the implications of the DMCA. Many seemed unaware that they were burdening research or altering the outlines of the Sony rule (and clearly some alteration in Sony took place). Many seemed to think, at the time, that the DMCA posed no threat to fair use. Partly this was caused by misunderstanding of the technology, and partly it was due to the tendency to write legislation by taking a weighted average of the positions of interest groups, rather than trying to construct a logically consistent statutory structure.

So the DMCA is still a mess. It still bans or burdens far too much legitimate activity. This court’s ruling has gone some distance toward resolving the inherent contradictions in the statute; but we still have a long, long way to go.