Restricting the Sale of Unauthorized Component Parts Through the Digital Millennium Copyright Act

By H. Jonathan Redway

Recent statutory construction of The Digital Millennium Copyright Act of 1998 ("DMCA") has resulted in the creation of a new intellectual property right that may assist companies who have a legitimate business interest in thwarting the sale of unauthorized component parts. This new intellectual property right protects technological measures that companies may choose to adopt to restrict the sale of unauthorized component parts.

We all know of products that require the interoperation of component parts. For example, stereo receivers send electronic signals to speakers to create sound. DVDs send digital information to television monitors to create pictures. Lenses send optical readings to cameras to create digital or film photography. For manufacturers of products that require the interoperation of component parts, such as these, it may be important to protect against the use of unauthorized component parts, particularly when the use of unauthorized component parts may result in faulty interoperations, or injure other constituent parts. For the manufacturers of such products, now could be the time to (1) obtain copyright protection on the software used to coordinate interoperations and (2) adopt technological measures to protect against unauthorized use of the copyright protected software.

For some time now, the law has recognized that software programs, including software used for the interoperation of component parts, may be protected by copyright. To qualify for copyright protection, the software must be original to the author. Feist Publications v Rural Tel. Service, 499 U.S. 341, 345 (1991). "Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity." Software that qualifies for copyright protection, whether in object code or source code, can be protected from unauthorized copying. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983). To be eligible for copyright protection, the software must have a sufficient level of original authorship not dictated by functional aspects such as unique language or unique selection and arrangement of appropriate approximation techniques. For example, the program may not be mere mathematical formula.

Section 1201 of the DMCA prohibits, inter alia, the trafficking of products or devices that...