The Best Laid Plans: How Dmca Sec. 1201 Went Awry, Smothering Competition and Creating Giants,and Where We Go Now

• Publication year: 2021

The Best Laid Plans: How DMCA sec. 1201 Went Awry, Smothering Competition and Creating Giants,and Where We Go Now

Tyler Fabbri

University of Georgia School of Law

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THE BEST LAID PLANS: HOW DMCA § 1201 WENT AWRY, SMOTHERING COMPETITION AND CREATING GIANTS, AND WHERE WE GO NOW

Tyler Fabbri^*

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Table of Contents

I. INTRODUCTION..............................................................................................155

II. Background................................................................................................156

A. The Digital Millennium Copyright Law..............................156
B. Section 1201 of the DMCA...........................................................157
C. Interoperability..............................................................................158
D. The Rapid Expansion of §1201 Application in the Wake of Lexmark...............................................................159
E. Adversarial Interoperability in Big Tech..........................161
F. The Kill Zone....................................................................................162
G. DMCA §1201 Litigation.................................................................165
H. Current, Ongoing Litigation...................................................167

III. Analysis.........................................................................................................167

A. Arguments for Adversarial Interoperability..................167
B. Arguments Against Adversarial Interoperability........171
C. The Craigslist Cases.......................................................................172
D. The French Connection: Lessons from France's Interoperability Regulations..................................................173

IV. Conclusion..................................................................................................174

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I. Introduction

"Whether it's Google or Apple or free software, we've got some fantastic competitors and it keeps us on our toes."¹ Competition plays a pivotal role in innovation and creation and competitors should absolutely keep major players on their toes.

Competition is, or should be, a defining characteristic of the American economic system.² Over time, structural changes have stifled competition instead of fostering it. This is clear particularly in the technology industry, where giants have emerged and assumed positions of unique societal importance. "In . . . communities, Facebook is the internet and Amazon is retail delivery. More widely, students, jobseekers, and journalists. . . require access to Google's educational suite, Linkedin or Twitter just to do their work."³

Due to growing reliance on technology, consumers are constantly looking for new developments and improvements to goods and services being offered in the marketplace.⁴ However, provisions of the Digital Millennium Copyright Act (DMCA) largely serve to hinder critical forms of competition that could lead to more consumer-friendly developments. Specifically, §1201 of DMCA prevents what is known as adversarial interoperability—essentially creating a product or service that works with an existing one without that creator's direct consent. Adversarial interoperability was the hallmark of the tech-growth era, and was used by Apple, Facebook, and IBM in their climbs to the top of their fields.⁵

Thus, Americans are largely stuck with what the tech companies are willing to give them. People hate Facebook.⁶ General enthusiasm for Amazon is

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shrinking.⁷ People continue to use these services in droves because there are no meaningful or feasible alternatives.⁸ The solution is permitting companies or innovators to deliver products that work with existing platforms to fill in gaps or offer new avenues for consumers to get what they want.⁹ Two-thirds of Americans agree that tech giants like Google and Amazon are too big.¹⁰ While it likely would not be a silver bullet solution, a repeal of §1201 of the DMCA would help reinvigorate entrepreneurial spirit and give consumers more choices.

Part II of this Note discusses the background of the Digital Millennium Copyright Act (DMCA) and §1201 of the law, which prevents technological circumvention of protected works. This part also discusses aspects of adversarial interoperability relevant to the Note's analysis and some of the impacts being seen in the big-tech space as a result. specifically, this part further defines adversarial interoperability and explores the expansion of §1201 application to curtail it. Additionally, this part analyzes how many big companies are benefitted by the status quo and how they use §1201 to effectively dismantle competition from the very start by creating the "Kill Zone." Part III of this Note analyzes adversarial interoperability more specifically, looking at both the benefits and potential drawbacks of a redeveloped legal scheme surrounding the activity and then examines French efforts to balance consumer and developer interests.

II. Background

A. THE DIGITAL MILLENNIUM COPYRIGHT ACT

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) with intentions of protecting owners of copyrights against acts of digital piracy

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and theft of the protected works.¹¹ After going into effect in 2000, the DMCA worked to handle an array of copyright protection challenges inherent to an increasingly digital society.¹² The DMCA was the product of collaboration on the part of "publishers, scientists, civil rights groups and others," and is considered to be a "compromise measure" by these groups who often have directly competing interests.¹³ Because the DMCA was the target of significant criticism from various parties in the technological space, revisions to the Act were made to carve out certain exceptions that would allow for activities such as encryption and security research.¹⁴ Despite some of these revisions being made, calls for further changes remain.¹⁵

B. SECTION 1201 OF THE DMCA

The DMCA provisions most relevant to this paper are both in §1201. 17 U.S.C. § 1201(a)(2) states, "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that works to circumvent technological measures aimed at restricting access to copyrighted works.¹⁶ Section 1201(b) prohibits the same conduct and further protects the copyright owner from actions that could work against technological safeguards to that protected work.¹⁷ The provisions largely take aim at devices or objects that are designed primarily with the circumventing of technological protection measures in mind.¹⁸ The law also focuses on devices or objects which hold very limited commercial value outside of their ability to circumvent these technological protective measures on protected works.¹⁹ in the current scheme, courts generally reason that

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individuals charged with violating §1201 of the DMCA cannot use traditional intellectual property defenses like fair use, as actions taken in the spirit of circumventing digital copyright protections are not "use" per se, but are rather issues of "access."²⁰ The DMCA has included some enumerated defenses against charges for infringement, including those for nonprofit library actions, law enforcement related activities, intelligence analysis and gathering agencies, and other governmental agencies.²¹

C. INTEROPERABILITY

Interoperability is the term used to describe a product's capability to work with different products.²² It is largely the same thing in the technological space: interoperability is "the technical ability to plug one product or service into another product or service."²³

There are three distinct categories of technological interoperability, and the different versions impact consumers and copyright holders in different ways. First, there is "indifferent" interoperability, where the copyright holder largely does not mind or care about the device that works with their protected work.²⁴ A basic example of this is cigarette lighter phone chargers.²⁵ The developer of the cigarette lighter in a car would have no reason to know someone is plugging a phone charger into their product, and even if they did, there is no tangible threat to their protected work.

Next, there is "cooperative" interoperability, where the developer of the protected product is eager to allow others to create add-ons or features to their existing product.²⁶ For this, one can think of phone manufacturers including standard 3.5mm headphone jacks into their phones or installing standard Bluetooth chips²⁷ into their phones; consumers are allowed to plug in or connect

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any compatible device, and the phone manufacturer benefits from the widened array of capabilities their product now offers.

Finally, there is "adversarial" interoperability, which involves a manufacturer developing a product that works with another product whose developer is openly hostile toward it.²⁸ This could be something like third-party replacement parts or unauthorized computer or phone applications.²⁹ Simply put, regardless of whatever advances or improved service experience is offered by the new device, the copyright holder does not want that development taking place, as that device is generally seen as a threat to its economic interests in the copyrighted material.³⁰

D. THE RAPID EXPANSION OF §1201 APPLICATION IN THE WAKE OF LEXMARK

Section 1201 of the DMCA was once a relatively small puzzle piece in the copyright enforcement regime. However, as "smart" devices and technology have become significantly less expensive, the provision has become increasingly important.³¹ One of the first major cases to involve §1201 concerned Lexmark and its printer ink cartridges designed specifically for use with Lexmark's own printers.³² Lexmark sold refillable ink cartridges, but offered customers a sizable discount on "Prebate" toner...