Advanced Copyright Issues on the Internet - Fenwick & West LLP

The court’s statements might imply that circumvention for fair uses is privileged. Indeed,the court stated, “Chamberlain’s proposed construction would allow copyright owners to prohibitexclusively fair uses even in the absence of any feared foul use. It would therefore allow anycopyright owner, through a combination of contractual terms and technological measures, torepeal the fair use doctrine with respect to an individual copyrighted work – or even selectedcopies of that copyrighted work. Again, this implication contradicts § 1201(c)(1) directly.” 879Despite these pregnant statements, however, the court stated in a footnote, “We leave open thequestion as to when § 107 might serve as an affirmative defense to a prima facie violation of §1201. For the moment we note only that though the traditional fair use doctrine of § 107 remainsunchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is notinfringement.” 880Turning to Chamberlain’s specific claims under Section 1201(a)(2), the courtsummarized the requirements for liability as follows:A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of avalid copyright on a work, (2) effectively controlled by a technological measure,which has been circumvented, (3) that third parties can now access (4) withoutauthorization, in a manner that (5) infringes or facilitates infringing a rightprotected by the <strong>Copyright</strong> Act, because of a product that (6) the defendant either(i) designed or produced primarily for circumvention; (ii) made available despiteonly limited commercial significance other than circumvention; or (iii) marketedfor use in circumvention of the controlling technological measure. 881The court ruled that Chamberlain had failed to satisfy both the fourth and fifth elementsof the test. With respect to the fifth element, Chamberlain had neither alleged copyrightinfringement nor explained how the access provided by the defendant’s transmitter facilitatedthird party infringement of any of its copyright rights. Instead, the defendant’s transmittermerely enabled the end user to make legitimate use of the computer program in the GDO. 882Nor had Chamberlain established the fourth element. The record established thatChamberlain had placed no explicit restrictions on the types of transmitter that the homeownercould use with its system at the time of purchase. 883 “<strong>Copyright</strong> law itself authorizes the publicto make certain uses of copyrighted materials. Consumers who purchase a product containing acopy of embedded software have the inherent legal right to use that copy of the software. Whatthe law authorizes, Chamberlain cannot revoke.” 884 Although this statement suggests that a879880881882883884circumvention violation by the defendant in the first place under its reading of the scope of the DMCA. Id. at1191 n.8.Id. at 1202.Id. at 1200 n.14.Id. at 1203.Id. at 1198, 1204.Id. at 1183.Id. at 1202.- 197 -