CNET is reporting on a cease and desist letter some company has sent to Microsoft, Apple, Adobe and others. (I’m not going to mention the company by name because I don’t want to play into what Jessica Litman and I agree is an attempt to garner some unwarranted publicity — see the CNET article.) Simply stated, the company, which has apparently developed some kind of technology designed to prevent ripping of digital audio streams, claims that Microsoft et al. are actively avoiding the implementation of the company’s technology in their products. It clams that this avoidance is a circumvention prohibited under the DMCA.
I don’t opine much on this site, but this company’s theory is based on, at best, a hypertechnical and unsupportable reading of the DMCA. As you know, “circumvention” under the DMCA means to “descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”
Did you see the word “avoid” there? That’s what the company is apparently hanging its hat on. And the argument sounds clever, until you actually think about the DMCA and what it says.
One has to read the DMCA prohibitions on avoiding, bypassing, removing, deactivating, or impairing technological measures along with the terms immediately preceding, namely, descrambling and decrypting. These prohibited activities share a common theme of some sort of active disabling of the technology, not simply choosing not to use an available technology.
There’s a maxim that Aristotle probably made up called sui generis that lawyers and courts are supposed to use when interpreting statutes. Essentially, when you see a group of terms together in a statute, one is to attribute a common meaning to those terms. Interpreting the meaning of “to avoid” in the way that this company suggests would not be consistent with this principle.
I sincerely hope to not see any reported decisions on these facts.