Advanced Copyright Issues on the Internet - Fenwick & West LLP

immunization of interoperability from anticircumvention liability under § 1201(f).” 629 Thislanguage, although dicta, characterizes the Section 1201(f) exemption very broadly. 630Another dictum by the court in connection with articulating its rationale for rejectingsuch a broad interpretation of anti-circumvention liability makes clear the court’s belief that theanti-circumvention provisions should not be construed to prevent interoperability of computerprograms:Chamberlain’s proposed construction would allow any manufacturer of anyproduct to add a single copyrighted sentence or software fragment to its product,wrap the copyrighted material in a trivial “encryption” scheme, and thereby gainthe right to restrict consumers’ rights to use its products in conjunction withcompeting products. In other words, Chamberlain’s construction of the DMCAwould allow virtually any company to attempt to leverage its sales intoaftermarket monopolies – a practice that both the antitrust laws and the doctrineof copyright misuse normally prohibit. 631Components, Inc.(iv) Lexmark International, Inc. v. Static ControlFor a discussion of the applicability of the reverse engineering exception of Section1201(f) in this case, see Section II.G.1(o)(1) below.(v)Davidson Assocs. v. Internet GatewayIn this case, the plaintiff Davidson & Assocs., doing business as Blizzard Entertainment,owned the copyrights in several computer games. The games could be played in either a singleplayermode or in an online multi-player mode called “Battle.net mode.” 632 Blizzard operated a24-hour online gaming service known as the Battle.net service that allowed owners of certainBlizzard games to play those games against each other in Battle.net mode by linking togetherover the Internet through Battle.net servers. In addition to multi-player game play, Battle.netmode allowed users to chat with other potential players, to record wins and losses and saveadvancements in a password protected individual game account, and to set up private games onthe Battle.net service to allow players to determine whom they wished to interact with on theBattle.net service. 633 The court noted that these Battle.net mode features were “accessed from629630631632633Id. at 1200.The court noted that it had no occasion to reach the argument, raised by an amicus, that Section 1201(f) shouldcover the defendant’s actions in distributing a product that circumvented technological measures restrictingaccess to the plaintiff’s computer program so as to interoperate with it. Because Section 1201(f) is anaffirmative defense, the court noted that it would become relevant only if the plaintiff could prove a prima faciecase of anti-circumvention liability to shift the burden to the defendant, which the court ruled the plaintiff hadultimately failed to do. Id. at 1200 n.15.Id. at 1201 (citations omitted).Davidson & Assocs. v. Internet Gateway, 334 F. Supp. 2d 1164, 1168 (E.D. Mo. 2004).Id.- 152 -