Advanced Copyright Issues on the Internet - Fenwick & West LLP

Third, the case raised the issue of whether a plaintiff who demonstrates a likelihood ofsuccess on the merits of claims under Section 1201 of the DMCA is entitled to a presumption ofirreparable harm for purposes of a preliminary injunction, as would be the case in a showing oflikely success on a claim for copyright infringement. The court noted that this must beconsidered an open issue: “Because the DMCA is a recently-enacted statute, there appears to beno authority holding that a plaintiff seeking a preliminary injunction who shows a reasonablelikelihood of success on a claim arising under section 1201 of the DMCA is entitled to apresumption of irreparable harm.” 670 Accordingly, the court considered in each instance whetherSteambox’s violations of the DMCA were likely to cause irreparable harm.Turning to the plaintiff’s claims under the anti-circumvention provisions of the DMCA,the court noted that RealNetworks’ products embodied two technological measures to controlagainst unauthorized access or copying of content. First, a “Secret Handshake” – anauthentication sequence that only RealServers and RealPlayers knew – ensured that files hostedon a RealServer could be sent only to a RealPlayer. Second, a “Copy Switch” was used, whichwas a piece of data in all RealMedia files that contained the content owner’s preferenceregarding whether or not the stream could be copied by end users. 671 RealPlayers were designedto read the Copy Switch and obey the content owner’s wishes.The court ruled that the Secret Handshake constituted a technological measure thateffectively controlled access to copyrighted works within the meaning of Section 1201(a)(3)(B),and that the Copy Switch constituted a technological measure that effectively protected the rightof a copyright owner to control the unauthorized copying of its work within the meaning ofSection 1201(b)(2)(B). The court concluded that, because Streambox VCR was primarilydesigned to bypass the Secret Handshake and circumvent the Copy Switch (and had only limitedcommercially significant purposes beyond the same), Streambox VCR violated Sections1201(a)(2) and 1201(b) of the DMCA. 672The court rejected Streambox’s defense that Streambox VCR allowed consumers to make“fair use” copies of RealMedia files under the Supreme Court’s decision in Sony Corp. v.Universal City Studios, Inc. 673 The court distinguished the Sony case on the ground that, inSony, the Supreme Court based its holding on the fact that video cassette recorders were mostlyused by consumers for “time shift” viewing of programs, rather than the redistribution of perfectdigital copies of audio and video files, and that substantial numbers of copyright holders whobroadcast their works either had authorized or would not object to having their works timeshiftedby private viewers. In the instant case, the court noted, copyright owners had specificallychosen to prevent the copying enabled by the Streambox VCR by putting their content onRealServers and leaving the Copy Switch off. 674670671672673674RealNetworks, 2000 U.S. Dist. LEXIS 1889 at *17.Id. at *6.Id. at *19-21.464 U.S. 417 (1984).RealNetworks, 2000 U.S. Dist. LEXIS at *21-22.- 162 -