Copyrights without limits: the undefeatable right of access control under section 1201(a) of the Digital Millennium Copyright Act.

• Author: Stout, Kristian D.

INTRODUCTION I. CIRCUIT SPLIT: SKYLINK AND MDY A. Skylink B. MDY II. CONSTITUTIONAL IMPLICATIONS OF THE NO-NEXUS APPROACH A. The Copyright Clause 1. Paracopyright and the Commerce Clause III. THE ACCESS RIGHT AND STATUTORY INTERPRETATION A. Canons of Interpretation 1. Textualism 2. Beyond Textualism a. Legislative History b. Superfluities c. The Golden Rule d. Pragmatic Considerations CONCLUSION INTRODUCTION

The law of unintended consequences is inescapable. Although the criticism of the Digital Millennium Copyright Act ("DMCA") reached a height more than a decade ago, the damaging effects this law has on innovation continues to this day. Section 1201 of the DMCA contains prohibitions on the use of and trafficking in technologies that "effectively control[] access to work[s]" protected under the Copyright Act (the "anticircumvention provisions"). In a commendable effort to hedge against their own inability to foresee changes in the landscape of technology, Congress created a power in the Librarian of Congress ("LoC") to establish exemptions to the DMCA's anti-circumvention provisions every three years. (1) However, such a grant of power only underscores how well Congress is aware that the DMCA could hinder innovation and consumer choice, and how that body is consequently forced to play defense against the negative effects of the law. Congress is forced to consider and ratify the selective exemptions that the LOC chooses to make regarding who should be exempted.

A recent controversy involving this section of the DMCA is responsible for the unlocking Consumer Choice and Wireless Competition Act ("Consumer Choice Act"), signed into law by President Obama. (2) Starting in 2006, the Copyright Office recognized an exemption to [section] 1201 that would allow for consumers to unlock their cellphones--a process by which an individual purchaser would be able to take a phone purchased, for instance, at an AT&T store and use it on Verizon's network. (3) This exemption was renewed in 2010, but in 2013 the Copyright Office refused to renew it again. (4) When the exemption was lost, a petition was created on WhiteHouse.gov that fetched over 114,000 signatures in favor of allowing cell phone unlocking. (5)

The Consumer Choice Act was the result of coordination between the "FCC, industry, and Congress," and allowed consumers "to use their phones or mobile devices on any network they choose." (6) This law enshrines the previously retracted exemption that allows users of cell phones to unlock their devices without running afoul of [section] 1201 of the DMCA. (7) Thus, the legislation officially recognizes a practice that should have arguably never been proscribed by copyright law. (8) No actual copyright infringement was at issue when users simply wanted to use their cellphones on different networks. The DMCA, in this case, was merely a set of handcuffs locking consumers into a particular consumption pattern preferred by device manufacturers and network carriers. Moreover, this one fairly narrow, mundane issue--consumer choice in the use of cellphones--hints at the untold existence of other possible alternate uses of devices and technologies that are kept from the market because of fears that they won't pass muster under [section] 1201.

For instance, it is easy to imagine that the recent anti-trust action against Keurig manufacturer Green Mountain Coffee could provide the groundwork for [section] 1201 actions to enforce Green Mountain's market dominance. (9) In the Keurig case, Treehouse Foods has sued Green Mountain for violating the Sherman Act on the grounds that Green Mountain will begin to issue new machines that are only capable of reading their own proprietary label format. (10) Assuming for the moment that Green Mountain prevails on this action and are able to manufacture these new software-protected machines, it is a short leap of legal reasoning away to connect the coffee makers to the DMCA. Green Mountain makes an effective technological protection measure pre-loaded on their coffee makers. A competitor who wants to sell coffee K-Cups to the very large Keurig market would need to create labels that are compatible with the software in the machines, and to do so would be effectively bypassing a technological protection measure. Thus, an action to protect the market share of a coffee machine manufacturer would fall very plausibly within the ambit of the DMCA--a law ostensibly written to protect the copyright interests of rights holders.

However, the focus on what exemptions the LOC will recognize, and when Congress will fully authorize them by statute, is something of a sideshow--at least when judged against the entire framework of [section] 1201 and certain defects therein. In the jurisprudence surrounding the DMCA, there yet remains a circuit split regarding important implications of new property rights arguably, and accidentally, created in the anti-circumvention provisions. Thus, the viability of this law as it is sometimes being applied is far from certain until it reaches the Supreme Court.

Section 1201(a) specifically forbids the circumvention of technological protection measures ("TPM") that effectively control access to a work protected under the Copyright Act. (11) By contrast, [section] 1201(b) prohibits trafficking in devices that enable third parties to circumvent TPMs that effectively protect a right of a copyright holder guaranteed under the Copyright Act. (12) Therefore, [section] 1201(a) appears to provide a cause of action when someone merely circumvents a protection measure, regardless of whether a particular right of a copyright holder is violated, whereas [section] 1201(b) requires that the measure in question actually be in service of protecting a right granted under the Copyright Act.

The Federal Circuit has held that [section] 1201(a), despite its broad language, could not reasonably be read to mean that it was forbidden to circumvent a TPM, when that measure has no connection to an actual right guaranteed under the Copyright Act. (13) In the view of the Federal Circuit, without a nexus between circumvention and the infringement of a right, [section] 1201(a) would create a nearly unbounded new property right that extends far beyond the scope of what one would consider a copyright. (14)

By contrast, the Ninth Circuit believes that the plain language of the text of [section] 1201(a), coupled with certain readings of the legislative history, compel it to recognize a broad access control right. (15) In reaching its holding, the Ninth Circuit acknowledged the arguments underlying the Federal Circuit's opinion, and dismissed them as mere policy considerations. (16)

This Paper examines the tensions between these two positions. Much of the reasoning in both opinions turned on statutory interpretation techniques, with each court relying on a different set of suppositions regarding how best to interpret [section] 1201. Ultimately, this Paper will take the position that the Federal Circuit is on the better constitutional and statutory interpretation ground for various reasons, and that the Supreme Court should see [section] 1201 as requiring an infringement nexus.

Part I of this Paper describes in more detail the tension between the Ninth Circuit and the Federal Circuit regarding the proper construction of [section] 1201. Part II then examines the constitutional implications of the Ninth Circuit's "no nexus" position. Part III moves on to examine the various statutory interpretation techniques employed by both courts, and the strengths and weaknesses of each.

1. CIRCUIT SPLIT: SKYLINK AND MDY

   1. Skylink

      Chamberlain v. Skylink is a seminal case in the Federal Circuit dealing with [section] 1201 anti-circumvention interpretation. (17) In Chamberlain, the Federal Circuit held that, in order to succeed under a [section] 1201(a)(2) access violation claim, a plaintiff must show that the circumventing technology infringes or facilitates others in infringing some right guaranteed to the plaintiff under the Copyright Act. (18) This requirement has been called the "infringement nexus requirement." (19)

      The plaintiff, Chamberlain, a seller of garage door systems, protected its garage doors with a security system based on a "rolling code." (20) This rolling code system continually rotated the transmitter frequency needed to open the door, thus allowing enhanced security against criminal entry. (21) The defendant, Skylink, manufactured a universal transmitter system that was designed to interoperate with a variety of garage door systems, including the plaintiffs. (22) Chamberlain sued Skylink under [section] 1201(a)(2), alleging that Skylink's garage door opening system evaded a TPM embodied in the "rolling code" system. (23) Therefore, by selling such systems, Chamberlain alleged that Skylink had trafficked in devices designed to circumvent TPMs, and was in violation of [section] 1201(a)(2). (24)

      The district court found for Skylink, basing its holding on the idea that, because Chamberlain had never restricted its customers' use of competing transmitters, the customers were implicitly authorized to use Skylink's product. (25) Thus, with the implied authorization, there was no unauthorized access in violation of [section] 1201. (26)

      The Federal Circuit upheld the district court, but it did so on other grounds. The Federal Circuit held that without either a copyright infringement, or the facilitation of infringement, [section] 1201(a)(2) could not be applied. (27) In so doing, the Federal Circuit opined that the access provision was necessarily tied to a copyright owner's rights, and could not operate as a free-floating provision. (28) Under the Federal Circuit's reading of [section] 1201(a)(2), the DMCA did not create a brand new access right unmoored from the rights guaranteed under [section] 106 of the Copyright Act. (29) The rights provided by [section] 1201(a)(2) were to a new cause of action, and not...