Advanced Copyright Issues on the Internet - Fenwick & West LLP

DeCSS), and not dissemination of the means of circumvention itself. 625 Second, the defendantscould not claim that the sole purpose of DeCSS was to create a Linux DVD player, becauseDeCSS was developed on and ran under the Windows operating system, and could thereforedecrypt and play DVD movies on Windows as well as Linux machines. 626 In addition, in anearlier opinion, the court ruled that Section 1201(f) was inapplicable because the legislativehistory of the DMCA makes clear that Section 1201(f) permits reverse engineering ofcopyrighted computer programs only and does not authorize circumvention of technologicalsystems that control access to other copyrighted works, such as movies. 627(ii) Storage Technology Corporation v. CustomHardware Engineering & ConsultingThis case rejected an assertion of a Section 1201(f) defense because the defendant’scircumvention resulted in an infringing copy of the plaintiff’s copyrighted program being madein RAM, and the Section 1201(f) defense exempts circumvention only if it does not result incopyright infringement. For a discussion of the details of the case, see Section II.G.1(o)(4)below.Inc.(iii) Chamberlain Group, Inc. v. Skylink Technologies,The facts of this case are set forth in Section II.G.1(o)(2) below. Although this case didnot directly adjudicate the scope of the Section 1201(f) exemptions, the court made a fewstatements in dicta suggesting that Section 1201(f) acts to immunize interoperability from anticircumventionliability. In that case, the Federal Circuit ruled that the anti-circumventionprovisions of Section 1201 do not apply to all forms of circumvention to gain access to a work,but rather only to circumventions that facilitate some form of copyright infringement. 628 Thecourt reached this conclusion in part on the rationale that a broad interpretation of the anticircumventionprovisions to prohibit all forms of unauthorized access, whether or not protectedcopyright rights were thereby implicated, would be tantamount to “ignoring the explicit625626627628Id.Id.Universal City Studios Inc. v. Reimerdes, 82 F. Supp. 2d 211, 218 (S.D.N.Y. 2000) (citing S. Rep. No. 105-190(1998) and H.R. Rep. 105-551 (II) (1998)). Section 1201(f) would seem applicable to the original reverseengineering that the developers of DeCSS engaged in, but the trickier issue dealt with by the court is whether itshould apply to subsequent use of the DeCSS to gain access to copyrighted works stored on a DVD in order toplay such works under the Linux operating system. Such access is for use of the work stored on the DVD(albeit in an interoperable way), whereas the exception speaks in terms of “identifying and analyzing” thecopyrighted work to achieve interoperability. In addition, Section 1201(f) appears to be a defense only to theconduct of circumvention prohibited by Section 1201(a)(1), and not to the distribution of devices prohibitedunder Sections 1201(a)(2) and 1201(b). Because the court found that DeCSS is a device within the prohibitionof Section 1201(a)(2), it was not subject to the exception of Section 1201(f).Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1195, 1203 (Fed. Cir. 2004), cert.denied, 161 L. Ed. 2d 481 (2005).- 151 -