Advanced Copyright Issues on the Internet - Fenwick & West LLP

DVD player has the authority of the copyright holder to decrypt CSS and 321 Studios did nothold a CSS license. 756With respect to the specific prohibition of Section 1201(b)(1), 321 Studios argued thatCSS was not a copy control measure because it controlled only access to content and did notcontrol or prevent copying of DVDs. The court rejected this argument, noting that while it wastechnically correct that CSS controlled access to DVDs, “the purpose of this access control is tocontrol copying of those DVDs, since encrypted DVDs cannot be copied unless they areaccessed.” 757 The court also rejected 321 Studios’ argument that the primary purpose of DVDCopy Plus was not to violate rights of a copyright holder since the software could be used formany purposes that did not involve accessing CSS or that involved making copies of material inthe public domain or under fair use principles. In a potentially very broad holding, the court heldthat the downstream uses of DVD Copy Plus, whether legal or illegal, were irrelevant todetermining whether 321 Studios itself was violating the DMCA. 758 “It is the technology itselfat issue, not the uses to which the copyrighted material may be put. This Court finds, as did boththe Corley and Elcom courts, that legal downstream use of the copyrighted material bycustomers is not a defense to the software manufacturer’s violation of the provisions of §1201(b)(1).” 759321 Studios also argued that its software did not violate Section 1201(b)(2) because itused authorized keys to decrypt CSS. The court ruled that, “while 321’s software does use theauthorized key to access the DVD, it does not have authority to use this key, as licensed DVDplayers do, and it therefore avoids and bypasses CSS.” 760Finally, 321 Studios argued that, under the common requirement of both Sections1201(a)(2) and 1201(b)(1), its DVD Copy Plus software was not primarily designed andproduced to circumvent CSS, but rather was designed and produced to allow users to makecopies of all or part of a DVD, and that the ability to unlock CSS was just one of the features ofits software. The court rejected this argument, noting that Sections 1201(a)(2) and 1201(b)(1)both prohibit any technology or product “or part thereof” that is primarily designed or producedfor circumvention. Because it was undisputed that a portion of 321 Studios’ software was solelyfor the purpose of circumventing CSS, that portion of the software violated the DMCA. 761756757758759760761321 Studios, 307 F. Supp. 2d at 1096.Id. at 1097.Id.Id. at 1097-98.Id. at 1098. This holding is contrary to that reached by the court in I.M.S. Inquiry Management Systems, Ltd.v. Berkshire Information Systems, Inc., 307 F. Supp. 2d 521 (S.D.N.Y. 2004), discussed in the next subsection.321 Studios, 307 F. Supp. 2d at 1098. The court ruled that it could not determine on summary judgmentwhether the software had only limited commercially significant purposes other than circumvention, and thatwould be an issue a jury would have to decide. Id. The court also rejected 321 Studios’ challenge to theconstitutionality of the anti-circumvention provisions on the ground that is unconstitutionally restricted 321Studios’ right to tell others how to make fair use of a copyrighted work, impermissibly burdened the fair userights of others, and exceeded the scope of Congressional powers. Id. at 1098-1105.- 175 -