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600 ANTI-CIRCUMVENTION: A NEW STATUTORY SCHEME
to sell them digital versions for $10 each. Later, on Spring break, Joe’s friends have
their electronics stolen. Fearing professorial wrath, they are frantic to do their
Intellectual Property reading. Joe has the only remaining iPad and he has a copy of the
original pdf of this book on it. Ever the entrepreneur, Joe offers to let them read it on
his device: $1 a minute.
b.) Joan is a professor who wants to impress her Dean with her productivity. She prints
out a copy of the book, but simply removes the title page and replaces it with one naming
her as the author.
c.) Jonathan, another professor, likes the book – except all the stuff about “framing” and
“baselines.” He removes that chapter and adds some of his own material, including a
chapter on patent law’s doctrine of equivalents. Jonathan really likes his version and
does not want people meddling with it. He posts it on his own website for free download,
but he uses the in-built restrictions in Microsoft Word to “freeze” the document. Editing
is disabled.
d.) Jeremy gets an advance copy of the book and includes a lengthy review of the book
in his Kindle Single “What’s Wrong With Law Schools!” – a small ebook that he sells
for $1.99. Jeremy is harshly critical of the book’s approach and illustrates it with many
quotations.
Have Joe, Joan, Jonathan or Jeremy violated the license? Exactly how? Be precise about
the rights involved and the ways they were violated. Condition or covenant? What are
the consequences if they have? Boyle and Jenkins get a lucrative offer from Aspen to
sell the book commercially and decide to give up “all the hippy dippy open courseware
stuff.” They start sending DMCA takedown notices to anyone who posts a copy of the
book. Sound? Are Boyle and Jenkins allowed to post a DRM-limited version of the
book? (Think about this one carefully. Are they subject to the license?)
6.) Compare MDY’s and Skylink’s analyses of the reach of section 1201—which is more
faithful to the language of the statute and the legislative history? What about the relevant
policy arguments?
7.) “[I]n our view, an access control measure can both (1) attempt to block initial access
and (2) revoke access if a secondary check determines that access was unauthorized.”
Should the court find a violation of a “technological measure” under 1201 only in
circumvention of one that controls initial access to a work, or circumvention of any
measure that can interfere with access after it has been lawfully gained? What are the
implications of extending 1201(a) to the latter? Could Microsoft, for example, terminate
Word if it finds you have a competing word processor on your laptop, or Apple shut down
your phone if you have any disfavored app on it, and then label it a violation of Federal
law were you to resist? Or does the language “if access was unauthorized” constrain the
reach of this holding adequately? Is violation of the Terms of Use as you are using your
phone enough to make your “access” “unauthorized”?
8.) What does MDY decide about the relationship of fair use to 1201? What does Skylink
decide on the same issue? Corley? One court has ruled on this issue and two have
declined to reach it. If they had to, what would they say?