DMCA @ EFF is a good starting point for looking at some of the cases. I am most interested in the companies using copyright infringement to prevent companies from entering their market. What do these cases have in common? Well typically companies will encrypt a portion of their signal or communications and then claim that de-crypting is a violation of the DMCA. We have seen several companies take this approach.
- Blizzard v. BNetD is the most dangerous to the software industry. Essentially three programmers. As it currently stands this makes reverse engineering of software largely illegal. Three programmers clean roomed the data stream the Warcraft Server and the Warcraft client. The traffic was encrypted so Blizzard envoked the DMCA. The current decision could have a chilling effect on people wanting to have compatible.
- Lexmark vs. Static Control and Chamberlain vs. Skylink are two of the most egregious uses of the DMCA and they share the common approach of attempting to stifle competition. In the Lexmark case they wanted to quash competing after market toner and in the Chamberlain case it was a competing garage door opener.
The last two are great example of quashing a competitive threat. While the courts rejected both cases, they certainly saddled their competitors with some serious legal fees. Sadly this strategy is a relatively for a company to enact but it certainly is a bad idea for the company that decided to cloak a part of the software in encryption and cut the competitor off with a lawsuit. Relying on a lawsuit is a very dangerous as the company is no longer competing, it's litigating. Using litigation is a fine tactic for stifling a competitor but it's long term effects on a company culture of innovation is disastrous.
Why compete if you are in a dominant market position? You can just encrypt and litigate your competition seeking to interact with your software or hardware. I expect that litigation will become the favorite tactic of entrenched software vendors feeling the hot breath of their open source replacements. But litigation ignores a crucial aspect of competition. Your competition would not be gaining traction in the marketplace if some feature or functionality that they need. By suing your competition, you might make the mistake of not listening to your customers. By buying a competing product or service your customers are sending a very clear message. Listen to it.
Technoratic Tags:
DMCA
Competition
Lexmark
Static Control
Chamberlain
EFF
