Advanced Copyright Issues on the Internet - Fenwick & West LLP

means that, even though it may be permissible to circumvent a technological measure to obtaininformation necessary for interoperability of an independently developed computer program, orfor the user of an independently developed computer program to circumvent an access controlmeasure in order to interoperate with a program controlled by the measure, it is neverthelessillegal for a third party to sell such user a device that would enable the circumvention, if thedevice is designed primarily for circumvention. Another implication of the ruling is that legaluses that may result after use of a device to accomplish circumvention are not to be factored intowhether the device is primarily designed for circumvention. Under this decision, the DMCAfocuses only on the capability of the device to accomplish circumvention in the first instance,and if that is its primary technical function, it is illegal.(iv) DirecTV, Inc. v. CarrilloIn this case, the court found the defendant liable under Section 1201 based on hispossession and transfer of equipment used to pirate satellite TV signals. The court found that thedevices were primarily designed to intercept encrypted signals. 541(v)Ticketmaster L.L.C. v. RMG Technologies, Inc.In this case, the plaintiff Ticketmaster alleged the defendant had violated Sections1201(a)(2) and 1201(b)(1) by distributing an automated tool that enabled users (such as ticketbrokers) to access and navigate rapidly through the Ticketmaster site and purchase largequantities of tickets. The tool enabled users to bypass Ticketmaster’s “CAPTCHA” system, asecurity system designed to distinguish between human users and automated programs byrequiring the user to read a distorted sequence of letters and numbers on the screen and enterthose letters and numbers correctly into the system in order to gain access to the ticket purchasepage. 542 On a motion for a preliminary injunction, the court found the plaintiff likely to prevail onthese claims. The court rejected the defendant’s argument that CAPTCHA was not a system or aprogram that qualified as a technological measure under the DMCA because it was simply animage, and it was designed to regulate ticket sales, not to regulate access to a copyrighted work.The court ruled that the DMCA does not equate its use of the term “technological measure” withthe defendant’s terms “system” or “program,” and that in any case the CAPTCHA system was atechnological measure within the DMCA because most automated devices could not decipherand type the stylized random characters the system generated in order to proceed to thecopyrighted ticket purchase pages. 543 Thus, CAPTCHA qualified as a technological measurethat restricted access to copyrighted works within the purview of Section 1201(a)(2). Similarly,it also fell within the purview of Section 1201(b)(1) because it protected rights of the copyrightowner by preventing automated access to the Ticketmaster ticket purchase web pages, therebypreventing users from copying those pages. Accordingly, the court issued a preliminary541542543DirecTV, Inc. v. Carrillo, 227 Fed. Appx. 588, 589-90 (9 th Cir. 2007).Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096, 1102, 1111-12 (C.D. Cal. 2007).Id. at 1112.- 130 -