Advanced Copyright Issues on the Internet - Fenwick & West LLP

software constitutes a violation of the DMCA. 800 The plaintiff Avaya sold PBX systems withmaintenance software embedded in them. When selling a new system, Avaya supplied thecustomer with a set of default passwords that the customer used to first log in to the system.Avaya alleged that the passwords were used without authorization by the defendants to log inand gain access to Avaya’s maintenance software. Defendants moved for summary judgmentthat use of valid logins to gain access to software does not violate the DMCA. The court ruledthat summary judgment was not appropriate because granting the motion would not result indismissal of any portion of Avaya’s DMCA claims from the case. All that would be resolvedwould be the abstract issue of whether use of valid logins does not violate the DMCA. BecauseAvaya had not identified a single, specific PBX to which the alleged illegal conduct was applied,ruling on the motion would have no effect until such time as the defendants could prove which ofthe PBXs at issue were accessed with the known, valid logins that they alleged were immunefrom DMCA liability. 801 “Avaya’s DMCA claims may or may not have merit, but a summaryjudgment rendered on a discrete set of facts that have yet to be proven is not the proper vehiclefor that determination.” 802(xx) Actuate v. IBMIn Actuate Corp. v. International Business Machines Corp., 803 Actuate alleged that IBM’sunauthorized posting on an IBM web site of Actuate’s copyrighted software for downloading,together with the license keys that allowed for unlimited use of such software by downloaders,whether they were authorized to use the software or not, constituted circumvention oftechnological measures on the software that restricted access to it and trafficking incircumvention devices. IBM filed a motion to dismiss the claim, relying on the I.M.S., Egilman,and R.C. Olmstead cases for the proposition that improper use of a legitimate password issued bythe copyright holder does not constitute circumvention. 804The court denied the motion. It found the I.M.S., Egilman, and R.C. Olmstead cases inconflict with the 321 Studios and the Microsoft v. EEE Business cases from the Northern Districtof California with respect to the issue of whether the unauthorized use of an otherwise legitimatepassword can constitute circumvention. The court rejected IBM’s argument that the two lines ofcases were not inconsistent on the ground that, in the 321 Studios and Microsoft v. EEE Businesscases, there was no allegation that the parties whose passwords were being used had issued thosepasswords to a third party. The court found no basis in 321 Studios for such a distinction, andnoted that Egilman expressly rejected the distinction. Accordingly, the court concluded that thetwo lines of cases simply reached contradictory results, and declined to follow the reasoning ofthe I.M.S. line of cases. It instead followed the 321 Studios and the Microsoft v. EEE Business800801802803804Avaya, Inc. v. Telecom Labs, Inc., 2009 U.S. Dist. LEXIS 82609 (D.N.J. Sept. 9, 2009).Id. at *2 & *10-13.Id. at *13.2010 U.S. Dist. LEXIS 33095 (N.D. Cal. Apr. 5, 2010).Id. at *9-10.- 183 -