Copyright in Everyday Things

The inauguration of the blog couldn’t have been timed more felicitously; yesterday the Federal Circuit Court of Appeals (known primarily for handling most appeals of patent cases in the US) delivered its opinion in Chamberlain Group v. Skylink Technologies. Chamberlain, which makes garage door openers, claimed that Skylink’s sales of aftermarket universal garage door openers amount to violations of the Digital Millennium Copyright Act — illegal trafficking in technology that circumvents technological controls governing access to Chamberlain’s copyrighted content, i.e., computer codes that drive the garage door opening systems. Chamberlain lost in the trial court, and it lost again on appeal. The court emphatically sided with consumers’ rights to open their garage doors with the openers of their choosing. Hurrah, and all that, for the court’s rejection of an obviously abusive attempt to use IP law to advance an anti-competitive agenda.

But still. The court relied in large part on what seems like an obvious proposition: consumers have the right to use objects that they buy (such as garage door opening systems), even when those objects contain embedded software. (There’s an important discussion of “access” as a legal interest divorced from copyright protection, but I’ll leave that alone for now.) For its part, Chamberlain hadn’t done or said anything to negate that expectation. So consumer “access” to the copyrighted control codes wasn’t unauthorized; it was part of the point. The sentence in the opinion that caught my eye is this one: “Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke. ”

Pretty cool, no? But this is the same Federal Circuit that ruled in Bowers v. Baystate Technologies (via a panel of different judges) that enforced a “no reverse engineering” term in a software shrinkwrap license. Could Chamberlain put a shrinkwrap-style agreement on the boxes that contain its garage door openers, requiring that its consumers buy only Chamberlain-brand replacement remote controls?

There’s a broader concern, too, I think, and a connection to yesterday’s post. The broader issue is that this is precisely the kind of case that should engage everyone, showing how IP law can touch the day-to-day lives of everyone, not just alleged “pirates.” My guess, though, is that aside from IP lawyers and non-lawyer IP policy wonks (who seem to be hard-wired to care about this stuff), this won’t get the mass media attention that the p2p cases attract. It’s not sexy.

I know who should care about it: Educators at every level and all those who value what Ed Felten calls the Freedom to Tinker — those who want to teach their kids how to fix cars or how to build funky stuff with discarded electronics parts. Skylink makes me think of the minor rant that I indulged a few years ago when I went looking for an unbuilt Heathkit computer for my son, thinking that I would help him build it and that he (and I) would learn something interesting about computing as a result. Ha. Unbuilt Heathkits are valuable antiques (there’s even a Heathkit Virtual Museum). When you can’t find a computer toolkit to play with, though, how do we teach our kids about this very cool stuff??

Out of the blogosphere and into the garage. That’s what we need to sell. How do we market the message?