By Ryan E. Long on February 8, 2016 at 3:19 pm
"No digital trespassing! Violators will be sued. Survivors will be sued again!" Ever seen that sign? Not likely. That's because, technically, there is no law against digital trespassing per se. This occurs when your grandma's new universal remote control climbs over, figuratively speaking, the encryption security fence on copyrighted content, such as the software to her old garage opener, so as to enable communication between the new control and old garage door opener. And yet some copyright owners want to hold your grandma civilly or even criminally liable under federal law for such trespassing. Allowing them to bust grandma would be an unwise expansion of their copyright monopoly.
Does Acme have a claim for digital trespass against Bling or your grandmother? In the view of some copyright holders, the answer is yes. That's because, in their view, Bling's universal remote control has enabled your grandma to violate the anti-circumvention provisions of what is called the Digital Millennium Copyright Act ("DMCA"). This is so even if neither Bling nor your grandma infringe, or otherwise induce infringement of, Acme's copyright in the source code by copying, reproducing, or otherwise publishing it. Under this view, there is a per se -- automatic -- violation of the DMCA whenever Bling or your grandma trespass, regardless of the circumstances.
But in the view of federal courts, there is no per se rule against digital trespassing under the DMCA. Bling's universal remote control allows for what is called interoperability between grandma's different devices, which is an efficiency that Congress didn't want to do away with when passing the DMCA. In fact, the DMCA explicitly states as much in Section 1201(f)(1), in case you want to bore yourself by looking it up. What is more, courts have dismissed claims brought under the DMCA where the plaintiff is only able to allege or prove digital trespass, no corresponding copyright infringement or conscious inducement of the same.
Then why do companies like Acme file lawsuits seeking redress for digital trespassing? There are various reasons. One is security. Closed software universes, like Apple's, protect better against viruses that can more easily attack porous systems that are liberal in their approaches to interoperability. This is one of the reasons why Apple's computers are hacked less often than personal computers. The second is the fear that digital trespassers will pirate copyrighted content. The third is lost revenues. Conversion technology which allows newer kilometers per hour devices to communicate with older miles per hour ones via a translation protocol cost companies money. Rather than forcing granny to buy a new television in order for her to gain access to content protected by new encryption technology, conversion technology enables her old television to communicate with the new encrypted content. In the process, new technology sales suffer.
In the end, your 92 year old grandma isn't going to jail! The DMCA didn't expand the scope of a copyright holder's monopoly, and it expressly says that. However, it may take some more court decisions to make that clear to aggressive copyright holders who seek to pursue granny for digital trespass merely because she uses conversion technology to watch Netflix's "Just Call Saul" on an old outdated screen.
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