Advanced Copyright Issues on the Internet - Fenwick & West LLP

Chamberlain GDO consumers who purchase a Skylink transmitter are not accessing the GDOwithout the authority of Chamberlain, but instead, have the tacit permission of Chamberlain topurchase any brand of transmitter that will open their GDO.” 860 The court ruled that these facts,together with the fact that there was a history in the GDO industry of universal transmitters beingmarketed and sold to allow homeowners an alternative means to access any brand of GDO,raised sufficient disputes of material fact about whether the owner of a Chamberlain rolling codeGDO was authorized to use the defendant’s universal transmitter to deny summary judgment toChamberlain. 861Following this opinion, and at the invitation of the court, the defendant moved forsummary judgment on Chamberlain’s DMCA claim, which the court granted. 862 Although bothparties had agreed for purposes of Chamberlain’s original motion for summary judgment thatChamberlain did not place any restrictions on consumers regarding the type of transmitter theyhad to buy to operate a Chamberlain rolling code GDO, in opposing the defendant’s motion forsummary judgment, Chamberlain submitted an affidavit of its Vice President asserting thatChamberlain did not authorize the circumvention of its rolling code GDOs, and argued that ithad not warned consumers against using unauthorized transmitters because it had no idea thatother transmitters could be made to operate its rolling code GDOs. 863 The court rejected thesearguments, finding that the affidavit was conclusory and entitled to little weight, and thatChamberlain’s failure to anticipate the defendant’s technology did not “refute the fact thathomeowners have a reasonable expectation of using the technology now that it is available.” 864Finally, Chamberlain argued that even if its customers were authorized to circumvent itssecurity measures, that had no bearing on whether sellers had similar authorization. The courtfound this argument ignored the fact that (1) there was a history in the GDO industry ofmarketing and selling universal transmitters; (2) Chamberlain had not placed any restrictions onthe use of competing transmitters to access its rolling code GDOs; and (3) in order for thedefendant’s transmitter to activate the Chamberlain garage door, the homeowner herself had tochoose to store the defendant’s transmitter signal into the Chamberlain GDO’s memory, thereby860861862863864Id.Id. at 1040. An amicus brief submitted by the Computer and Communications Industry Association (CCIA)argued that the court should deny summary judgment because the defendant’s activities fell within Section1201(f) of the DMCA, which CCIA argued permits circumvention of a protective measure for the purpose ofachieving interoperability. The court noted that, although it was not reaching this issue, the defendant mightperhaps be entitled to summary judgment on that basis. Id.Chamberlain Group, Inc. v. Skylink Technologies, Inc., 292 F. Supp. 2d 1040 (N.D. Ill. 2003). As apreliminary matter, Chamberlain asserted that the defendant bore the burden of proof to show that it wasauthorized to circumvent – not access – Chamberlain’s software as an affirmative defense. The courtdisagreed, ruling that it was clearly Chamberlain’s burden to demonstrate that the defendant circumvented atechnological measure without the authority of the copyright owner. Id. at 1044.Id.Id.- 194 -