Advanced Copyright Issues on the Internet - Fenwick & West LLP

(xi) CoxCom, Inc. v. ChafeeCoxCom leased cable boxes to its subscribers that enabled them to descramble incomingsignals for viewing and that transmitted certain information from subscribers back to CoxCom,including billing information association with purchase of pay-per-view programming. Thedefendant sold a digital cable filter that filtered out low-frequency signals, including the returntransmissions from the cable box containing purchase information. The court noted that thefilters were not illegal, and had innocuous uses, such as allowing cable television subscribers toenhance viewing quality by filtering out interference from FM radio broadcast towers, shortwaveradios, and home appliances. However, the defendants marketed the filters to their customers ascapable of filtering out pay-per-view charges. 560 The plaintiffs brought claims under the DMCAanti-circumvention provisions and the district court granted summary judgment to the plaintiffson those claims. 561On appeal, the First Circuit affirmed, rejecting the defendants’ argument that their filtersdid not “circumvent” technological measures. The court found the technological measure atissue to be CoxCom’s pay-per-view delivery and billing system that scrambled pay-per-viewprogramming to make it not viewable unless subscribers chose to purchase it. 562 Without furtheranalysis, the First Circuit simply concluded: “A digital cable filter allows subscribers to ‘avoid’or ‘bypass’ that technological measure. Given the factual record, we have little troubleconcluding that the district court properly granted summary judgment to CoxCom as toappellants’ liability under the DMCA.” 563(xii) DISH Network v. SonicviewDISH Network transmitted encrypted programming signals that were then received by anEchoStar receiver, which processed and decrypted the signals using data and encryptiontechnology stored in a DISH Network access card loaded into the receiver. The access cardcommunicated with the receiver to assure that only signals the subscriber was authorized toreceived would be decrypted. DISH Network brought anti-circumvention claims against thedefendants, whom DISH Network alleged were involved in the manufacture of receivers,software and other devices used to intercept and steal DISH Network’s encrypted signals. Upona motion for a TRO, the court ruled that DISH Network’s security access cards functioned asboth access controls and copyright controls, and that the defendants’ distribution of softwarefiles through a website that allowed individuals to decrypt and view DISH Network contentlikely violated both Section 1201(a)(2) and 1201(b)(1). 564560561562563564CoxCom, Inc. v. Chafee, 536 F.3d 101, 104-05 (1 st Cir. 2008).Id. at 106.Id. at 110.Id.Dish Network L.L.C. v. Sonicview USA, Inc., 2009 U.S. Dist. LEXIS 63429 at *2-3 &*7-8 (S.D. Cal. July 23,2009).- 135 -