Advanced Copyright Issues on the Internet - Fenwick & West LLP

that it was not supposed to be able to view any of the screenshots at issue, and that any requestmade for archived images after the first request resulted in a denial constitute circumvention ofits robots.txt file. The court rejected this argument, ruling that simply making further requests isnot circumvention under the DMCA. The requests did not alter any computer code to render therobots.txt file void. Internet Archive’s servers indicated that no lock existed when the requestswere made. Accordingly, the Harding firm could not avoid or bypass a digital wall that was notthere. 601 The court also ruled that Healthcare Advocates’ inference that the Harding firm shouldhave known it was not allowed to view any archived images via the Wayback Machine was bothunreasonable and irrelevant. When a screenshot was blocked, the Wayback Machine returned amessage stating that the page was blocked by the web site owner, but the message also includedlinks, one of which said, “Try another request or click here to search for all pages onhealthcareadvocates.com.” When this page appeared, the firm’s employee clicked on the linkand received a list of all available screenshots. 602 The court held that, even if the firm knew thatHealthcare Advocates did not give it permission to see its archived screenshots, “lack ofpermission is not circumvention under the DMCA.” 603 Accordingly, the court granted theHarding firm summary judgment on Healthcare Advocates’ claim of a violation of the DMCA. 604(iii) Apple v. PsystarThe facts of this case are set forth in Section II.G.1(b)(14) above. The court rejected thedefendant’s argument that Apple’s encryption of its Mac OS X operating system files, whichwere decrypted by a decryption key stored within Apple’s hardware, was not an effectivetechnological protection measure because the decryption key was publicly available on theInternet. “The fact that circumvention devices may be widely available does not mean that atechnological measure is not, as the DMCA provides, effectively protecting the rights ofcopyright owners in the ordinary course of its operations.” 605(4) No Requirements With Respect to Design of a ProductSection 1201(c)(3) provides that nothing in the bills “shall require that the design of, ordesign and selection of parts and components for, a consumer electronics, telecommunications,or computing product provide for a response to any particular technological measure ….”601602603604605Id. at *47-50.Id. at *50-51.Id. at *51.Id.Apple, Inc. v. Psystar Corp., 673 F. Supp. 2d 931, 942 (quoting Sony Computer Entm’t Am., Inc. v. Divineo,Inc., 457 F. Supp. 2d 957, 965 (N.D. Cal. 2006)).- 143 -