Microsoft v Datel and the DMCA

Software giant Microsoft is testing to see whether US Copyright law can be used to quell hardware competition on th eir popular Xb ox 360 console.  The company claims Xbox 360 console users are violating federal law – the Digital Millenium Copyright Act (DMCA) – if they use 3rd party hardware.  Microsoft alleges that it has recently discovered “striking similarities between Datel’s source code used in its Xbox 360 authentication chip and Microsoft’s source code.”

The case will help to further define the scope of the DMCA.

U.K. based Datel Holdings sells memory cards that are functional on Microsoft’s Xbox console.  In 2009, the Redmond, WA-based company remotely disabled Datel memory cards because the memory cards were supposedly circumventing an Xbox memory card authentication sequence—a sequence that allows limited access to copyright game data.  Microsoft claimed that Datel made the memory cards work by taking the sequence in violation of the DMCA. Datel believes that the case is anticompetitive and it will help to perpetuate Microsoft’s market power.  

The 1998 DMCA makes it a crime or civil violation to offer a product or service that circumvents a technological measure designed to protect copyrighted material.   

However, as the Electronic Frontier Foundation (EFF) explains in its brief supporting Datel in this recent litigation, the DMCA was aimed at preventing access to copyrighted material by non-paying customers, not at blocking competitors or policing users' behavior in regards to their own property.  Earler this year, Sony used the law to stop Playstation hacker, George Hotz, from ‘jailbreaking’ the console to play pirated and homemade game. Microsoft is trying to create an environment where only Microsoft products will be offered.  The court must decide on whether the DMCA extends to all facets of copyrighted material including peripherals.

Stay tuned. 


"Video game night, invasion from space #1" by Flickr user gnackgnackgnack shared under Creative Commons License Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0)

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