To Make Its Case, Coupons.com Says It Blocks Users When It Doesn't
from the let's-get-this-straight dept
We recently noted the somewhat mixed ruling in the Coupons.com lawsuit over whether or not it’s a DMCA violation to merely tell people to delete some files from their hard drive. The ruling noted that Coupons.com was trying to make a rather questionable argument. It’s a bit technical, and it required multiple readings to really understand what’s going on here, but effectively, Coupons.com is trying to invoke the DMCA’s anti-circumvention clause to punish a programmer who figured out how to get around the limits enforced by Coupons.com’s software, which lets users use a coupon a limited number of times. The real issue in this case is whether the software is about preventing uses or copies. If it’s uses, then it’s not covered by the DMCA. If it’s copies, then it is. The court noted that it certainly seems like the software is focused on uses rather than copies, as there’s no actual part of the software that blocks you from accessing the coupons as much as you want. It just blocks you from using them.
The programmer, John Stottlemire, who is being sued in this case, writes in to let us know that Coupons.com has just described its system in a misleading way in order to convince the court that its software really is copy protection rather than use protection, claiming: “The features block an individual computer’s access to a particular coupon offer altogether if that computer does not have the proper registry keys in place.” In other words, there is copy protection that blocks access if the registry keys are missing.
That claim may sound a lot like copy protection, but that’s not actually how their system works. Coupons.com doesn’t block access to its coupons based on a registry key — because if you don’t have a registry key, Coupons.com simply issues you new one. And that’s not how copy protection usually works; that’s how usage protection works. If the system worked the way it was described to the court, then first-time users, who would not have the proper registry keys, should not be able to use Coupons.com because they would be blocked from accessing coupons. But Coupons.com doesn’t do that to new users — all users without registry keys are simply given new keys (and not blocked whatsoever).
Basically, Coupons.com appears to be pretending that its software doesn’t work without a certain registry key in order to convince the judge that its software actually qualifies under the DMCA as copy protection. But, if it were copy protection, then Stottlemire’s programs (or written instructions) for how to defeat the software by deleting the registry key wouldn’t work. All Stottlemire’s method of “circumvention” would do is trigger the copy protection to deny access. So, either Coupons.com is lying to the judge, or Stottlemire’s program and instructions couldn’t have done what they claim it did (in which case he wouldn’t have broken the law). So… basically, it sounds like Coupons.com is either lying or they have no case. And, if they’re lying, they don’t have much of a case either.