Advanced Copyright Issues on the Internet - Fenwick & West LLP

claim. Citing the Chamberlin v. Skylink case, the court noted that there must be a showing thatthe access resulting from the circumvention led to infringement, or the facilitation ofinfringement, of a copyrighted work, and the plaintiffs had failed to make such a showing. Thecourt noted it was undisputed that the defendant had accessed the software in order to repair orreplace the software of a client of M&S and a valid licensee of the software, so thecircumvention of the password did not result in an infringement or the facilitation ofinfringement. 795M&S, in turn, alleged that Nordstrom had violated the DMCA by circumventing thedigital security of M&S’s computer network. M&S’s network was divided into two parts, onedealing with visual acuity systems and one with hotel/hospitality businesses. M&S asserted that,while Nordstrom had a password to access the acuity side of the system, he did not have apassword to access the hotel side, yet Nordstrom claimed to have accessed the hotel side. Thecourt denied summary judgment on M&S’s claim because of factual disputes. Nordstromasserted that he did not access the hotel side of the system and that any materials on the hotelside were not registered copyrights. By contrast, M&S had offered evidence that Nordstromaccessed the hotel side of the system, and alleged that the hotel side contained copyrightedworks. 796(xviii) R.C. Olmstead v. CU InterfaceThis case agreed with the I.M.S. case and held that access to a computer through theunauthorized use of a valid username and password does not constitute an unlawfulcircumvention. 797 The plaintiff was the owner of data processing software for credit unionscalled RCO-1 that it licensed to the defendant. The defendant CUI hired some developers todevelop a replacement program for RCO-1 and, to aid development, allowed the developers togain access to RCO-1 using valid usernames and passwords issued to CUI. The plaintiff claimedthat such unauthorized access violated the DMCA. The court rejected this claim, finding thecase indistinguishable from I.M.S. and the reasoning of I.M.S. persuasive. The court also notedthat the license agreement between the plaintiff and CUI did not set any restrictions regardingissuance of usernames and passwords, so that the plaintiff could not even show that CUI’s use ofits usernames and passwords was unauthorized. 798 “Simply put, CUI did not circumvent orbypass any technological measures of the RCO software – it merely used a username andpassword – the approved methodology – to access the software.” 799(xix) Avaya v. Telecom LabsIn this case, the court refused to decide on a motion for summary judgment the issueaddressed in the I.M.S. case of whether unauthorized use of a valid password to gain access to795796797798799Id. at *23-24/Id. at *30-31.R.C. Olmstead, Inc. v. CU Interface, LLC, 2009 U.S. Dist. LEXIS 87705 (N.D. Ohio Mar. 27, 2009).Id. at *21-24.Id. at *24.- 182 -