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DMCA Illegal circumvention of access control technology defined

Feb 7th, 2015 | By | Category: Copyright Litigation

Copyright Infringement claims – Anti-circumvention provision of DMCA.  WE TAKE DMCA LITIGATION CASES NATIONWIDE!

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Introduction

If you are sued for federal copyright infringement, another related claim that may be brought (for example following a BSA or SIIA software licensing audit) is a claim for illegal circumvention of access controlled technology.  This blog helps define this legal concept and explain it in layman’s terms.

17 U.S.C. 1201(a) is part of the DMCA.

This section of the Digital Millennium Copyright Act (“DMCA”) states:

(a) Violations Regarding Circumvention of Technological Measures.

(1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

Congress enacted the DMCA in 1998 to conform United States copyright law to its obligations under two World Intellectual Property Organization (“WIPO”) treaties, which require contracting parties to provide effective legal remedies against the circumvention of protective technological measures used by copyright owners. See MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 942 (9th Cir. 2010).

The DMCA was enacted to prohibit, inter alia, the trafficking of products or devices that circumvent the technological measures used by copyright owners to restrict access to their copyrighted works. Section 1201(a)(2) of the DMCA, commonly referred to as the anti-trafficking provision, prohibits any product or device that circumvents a technological measure that prevents unauthorized access to a copyrighted work.  See Lexmark Int’l, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943, 966-67 (E.D. Ky. 2003) vacated, 387 F.3d 522 (6th Cir. 2004).
The first provision, 17 U.S.C. § 1201(a)(1)(A), is a general prohibition against “circumventing a technological measure that effectively controls access to a work protected under [the Copyright Act].” The second prohibits trafficking in technology that circumvents a technological measure that “effectively controls access” to a copyrighted work. 17 U.S.C. § 1201(a)(2). The third prohibits trafficking in technology that circumvents a technological measure that “effectively protects” a copyright owner’s right. 17 U.S.C. § 1201(b)(1).  MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 942 (9th Cir. 2010), as amended on denial of reh’g (Feb. 17, 2011), opinion amended and superseded on denial of reh’g, No. 09-15932, 2011 WL 538748 (9th Cir. Feb. 17, 2011).

The anti-circumvention rule was discussed in Adobe Sys. Inc. v. Feather, 895 F. Supp. 2d 297, 302 (D. Conn. 2012) which stated:

“Similarly, the admitted facts establish that Feather is liable for violations of the anticircumvention provisions of the DMCA. The DMCA provides that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” 17 U.S.C. § 1201(a)(1)(A). “To ‘circumvent a technological measure’ is defined, in pertinent part, as ‘to descramble a scrambled work or otherwise to bypass a technological measure, without the authority of the copyright owner.Universal City Studios, Inc. v. Corley, 273 F.3d 429, 440–41 (2d Cir.2001) (quoting 17 U.S.C. § 1201(a)(3)(A) (internal alterations omitted)). In this case, the serial numbers and product keys marketed and distributed by Feather were primarily designed and produced for the purpose of circumventing the activation and validation features of the plaintiffs’ software in violation of section 1201(a)(2).

Here is a case involving Attorneys from Donahue Fitzgerald, LLP suing on behalf of Corel, Adobe, and Autodesk for circumvention of access control technology under 17 U.S.C. 1201(a).

Three ways to prove liability under the anti-circumvention statute:

Section 1201(a)(2) of the DMCA contains three independent bases for liability. RealNetworks, Inc. v. Streambox, Inc., No. C99–2070P, 1999 WL 1448173, 2000 U.S. Dist. LEXIS 1889, at *20 (W.D.Wash. Jan.18, 2000). To establish a violation of section 1201(a)(2), a party must prove that an accused product or device satisfies just one of those tests. Id. Section 1201(a)(2) prohibits the manufacture, distribution, and/or sale of any product or device that:
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only a limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title;
or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

See Lexmark Int’l, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943, 967 (E.D. Ky. 2003) vacated, 387 F.3d 522 (6th Cir. 2004).


The DMCA explains that a technological measure “controls access” to a copyrighted work if that measure “requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” Id. at § 1201(a)(3)(B). In addition, the statute provides that a product or device “circumvents” a technological measure by “avoid[ing], bypass[ing], remov[ing], deactivat[ing] or [otherwise] impair [ing]” the operation of that technological measure. Id. at § 1201(a)(3)(A). The DMCA does not specifically define the term “access.” Thus, the term should be given its ordinary, customary meaning. See FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (when the text of a statute contains an undefined term, that term receives its “ordinary or natural meaning.”). The ordinary, customary meaning of the term “access” is the “ability to enter, to obtain, or to make use of.” Merriam–Webster’s Collegiate Dictionary 6 (10th ed.1999).  See Lexmark Int’l, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943, 967 (E.D. Ky. 2003) vacated, 387 F.3d 522 (6th Cir. 2004).

Damages available to a Plaintiff for a DMCA anti-circumvention violation

The DMCA provides that “[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States court for such violation.  See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 341 (S.D.N.Y.) judgment entered, 111 F. Supp. 2d 346 (S.D.N.Y. 2000) aff’d sub nom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).
Pursuant to 17 U.S.C. 1203(c)(3)(A), TracFone is entitled to recover statutory damages “of not less than $200 or more than $2,500” for each TracFone Prepaid Phone Defendants altered, or sold as part of a conspiracy to alter, in furtherance of the Bulk Resale Scheme. See Stockwire Research Group, Inc. v. Lebed, 577 F.Supp.2d 1262, 1268 (S.D.Fla.2008) (awarding statutory damages per act of circumvention in the total amount of $2,357,200.00); see also Microsoft Corp. v. Silver Star Micro, Inc., No. l:06–cv–1350–WSD, 2008 WL 115006 at (N.D.Ga. Jan. 9, 2008) (awarding the statutory maximum for each of defendant’s acts of circumvention); Sony Computer Entm’t Am., Inc. v. Divineo, Inc., 457 F.Supp.2d 957, 967–68 (N.D.Cal.2006) (awarding statutory damages in amount of $5,791,400.00 under the DMCA in a default judgment against defendant); Sony Computer Entm’t Am., Inc. v. Filipiak, 406 F.Supp.2d 1068 (N.D.Cal.2005) (entering final judgment against defendant for $6,018,700.00 in statutory damages under the DMCA based on defendant’s sale of 7194 infringing items); Coxcom, Inc. v. Chaffee, 2007 WL 1577708 (D.R.I. May 31, 2007) (“Courts have interpreted this provision [17 U.S.C. 1203(c)(3)(A) ] to authorize an award of statutory damages ‘for each device sold.  See TracFone Wireless, Inc. v. SND Cellular, Inc., 715 F. Supp. 2d 1246, 1261-62 (S.D. Fla. 2010).

This is general legal information about this important section of the DMCA.  If you are facing a federal copyright lawsuit, or need to file a federal copyright lawsuit against an infringing party, contact one of our federal copyright lawyers to discuss handling your case.  We are experienced litigators and strong negotiators.  Call (877) 276-5084.  Click here to view our federal court experience.

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