Advanced Copyright Issues on the Internet - Fenwick & West LLP

1201(a)(3)(B) provides that a technological measure “effectively controls access to a work” if itrequires the application of information or a process with the authority of the copyright owner togain access to a work. Because one cannot gain access to a CSS-protected work on a DVDwithout the application of three keys that are required by the player software and are madeavailable only under license, CSS satisfied this definition. The court refused to import into thestatute any requirement for a technologically “strong means” of protection. 686The court also rejected the defendants’ argument that DeCSS was written to further thedevelopment of a DVD player that would run under the Linux operating system, as thereallegedly were no Linux-compatible players on the market at the time. The court ruled that, evenif there were so, it would be immaterial to whether the defendants had violated Section1201(a)(2) by trafficking in DeCSS. 687 “The offering or provision of the program is theprohibited conduct – and it is prohibited irrespective of why the program was written, except towhatever extent motive may be germane to determining whether [the defendants’] conduct fallswithin one of the statutory exceptions.” 688The court rejected a number of other defenses under the DMCA asserted by thedefendants. First, for the reasons set forth in Section II.G.1(g) above in the discussion of Section1201(f), the court rejected the defendants’ argument that the reverse engineering exception ofSection 1201(f) was applicable.Second, the defendants asserted the encryption research defense under Section 1201(g),which requires a showing that the person asserting the defense lawfully obtained the encryptedcopy of the work being studied, the circumvention act at issue is necessary to conduct encryptionresearch, the person made a good faith effort to obtain authorization before the circumvention,and the act does not constitute copyright infringement. The court held that the defendants hadfailed to prove that any of them were engaged in good faith encryption research, nor was thereany evidence that the defendants made any effort to provide the results of the DeCSS effort tothe copyright owners (which Section 1201(g)(3) instructs the court to take into account inassessing whether one is engaged in good faith encryption research), nor any evidence that anyof them made a good faith effort to obtain authorization from the copyright owners. 689Third, the defendants asserted the security testing defense under Section 1201(j). Thecourt rejected this defense, which is limited to “assessing a computer, computer system, orcomputer network, solely for the purpose of good faith testing, investigating, or correcting [of a]security flaw or vulnerability, with the authorization of the owner or operator,” because therecord did not establish that DeCSS has anything to do with testing computers, computer686687688689Id. at 318. The court cited legislative history to the effect that a technological measure “effectively controlsaccess” to a copyrighted work merely if its function is to control access. Id. at 317-18.Id. at 319.Id.Id. at 320-21.- 165 -