James Delahunty
20 Jun 2011 11:20
The Electronic Frontier Foundation (EFF) alleges misuse of copyright law in case involving third-party Xbox 360 memory cards.
The digital rights and privacy advocacy group filed an amicus brief with the United States District Court for the Northern District of California on Wednesday. In the filing, the EFF urges the federal court to block Microsoft Corporation's attempt to thwart a competitor offering memory card products for the Xbox 360 games console.
The Redmond-based software giant is in the midst of a court battle with Datel Holdings, a British company that lists memory cards products for the Xbox 360 system among its line-up. At the heart of Microsoft's challenge is an assertion that end-users (yes, the gamers) violate the Digital Millennium Copyright Act (DMCA) if they use third-party cards with the Xbox 360.
The Electronic Frontier Foundation argues that the DMCA was created in the late '90s to address unauthorized access to copyrighted material by non-paying customers, and not as a weapon for a company to thwart competition in the free market or as a way to police users' behavior in regards to property they have bought.
The EFF warns that if Microsoft prevails in this argument, it could have far-reaching consequences in the consumer electronics market. It would effectively allow Microsoft to control the Xbox 360 aftermarket, and would make it acceptable for consumer electronics companies to put in place technological protection measures (which you cannot break legally under the DMCA) that have the primary goal of eliminating competition (and limiting consumer choice) instead of protecting copyrighted material from unauthorized access.
The filing reads: "Microsoft's section 1201(a) claim against Datel amounts to nothing more than an attack on its own paying customers. Not only is this interpretation inequitable, it contravenes the plain meaning of section 1201(a), ignores Congress's expressed intent, and runs counter to the long-standing doctrine of intellectual property exhaustion."
"When correctly interpreted, section 1201(a) prohibits something else altogether: digital trespass upon intellectual property by outsiders who have no authority to 'unlock' a copyrighted work without 'breaking into' the work through circumvention. In other words, section 1201(a) protects copyright owners' ability to demand and receive payment before granting the authority to decrypt, descramble, or otherwise circumvent the technological protection measures preventing access to their works."
The EFF points out that what Microsoft is effectively looking for is the Court to grant it the exclusive rights to sell any and all Xbox 360-compatible memory cards, controllers and handsets.
In the filing, the EFF gives several examples of how the DMCA is misused in other areas of the consumer electronics industry. One such example is how increasingly, mobile phone manufacturers sell phones equipped with technological protection measures that lock consumers to a particular service provider, meaning they are subject to often inflated prices for service.
It also brings up a case where a Nikon photo encryption system was broken to allow owners of Nikon cameras to use competing photo editing software to manipulate their photos. In both cases, breaking the technological protection measures could be argued as being in violation of the DMCA, despite the fact that neither specifically protect against unauthorized access to copyrighted content.
You can download the EFF's Amicus brief PDF from here.