Advanced Copyright Issues on the Internet - Fenwick & West LLP

technological protection measure put in place by the copyright owner to control access to Pearl’scopyrighted ATS software. 749 The court rejected the argument that the VPN did not effectivelycontrol Chunn’s access to the ATS system in view of the fact that he had written the ATS systemhimself and maintained a backup file of it for Pearl. “The question of whether a technologicalmeasure ‘effectively controls access’ is analyzed solely with reference to how that measureworks ‘in the ordinary course of its operation.’ 17 U.S.C. § 1201(a)(3)(B). The fact that Chunnhad alternative means of access to the works is irrelevant to whether the VPN effectivelycontrolled access to them.” 750 Finally, the court ruled that because there was a factual disputeabout whether only employees of the service provider, rather than Chunn, had configured thetunnel from Chunn’s server to the Pearl VPN, or whether Chunn had configured his server androuter to tunnel into Pearl’s network, Chunn was not entitled to summary judgment on theDMCA claim. 751In a subsequent jury trial, the jury found for Chunn on Pearl’s DMCA claim. 752(viii) 321 Studios v. Metro Goldwyn Mayer Studios, Inc.In this case, 321 Studios marketed and sold software called DVD Copy Plus, which wascapable of copying the video contents of a DVD, both encrypted and unencrypted with theDeCSS encryption scheme, onto a recordable CD. 321 Studios sought a ruling that its softwaredid not violate the anti-circumvention provisions of the DMCA. 753 The court ruled that thesoftware’s capability to decrypt DVDs encoded with CSS did violate the anti-circumventionprovisions. The court first rejected 321 Studios’ argument that CSS was not an effectivetechnological measure because the CSS access keys were widely available on the Internet. Thecourt held that “this is equivalent to a claim that, since it is easy to find skeleton keys on theblack market, a deadbolt is not an effective lock to a door.” 754With respect to the specific prohibition of Section 1201(a)(2), 321 Studios argued that ithad the authority of the copyright holder to decrypt DVDs protected by CSS because its productworked only on original DVDs, and the purchaser of a DVD has the authority of the copyrightholder to bypass CSS to play the DVD. The court rejected this argument, citing Universal CityStudios, Inc. v. Corley 755 for the proposition that purchase of a DVD does not authorize thepurchaser to decrypt CSS, but rather only to view the content on the DVD. Only a licensed749750751752753754755Id. at 350.Id.Id.See Pearl Investments v. Standard I/O, Inc., 324 F. Supp. 2d 43 (2004) (rejecting Pearl’s claim that the jury’sverdict in favor of Chunn on the DMCA claim was inconsistent with its conclusion that Chunn’s physicalhookup to the Pearl system caused damage to Pearl).321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1089-90 (N.D. Cal. 2004).Id. at 1095.273 F.3d 429 (2d Cir. 2001).- 174 -