Ninth Circuit Imposes DMCA Liability, Even in the Absence of Copyright Infringement

The Ninth Circuit’s liability determination in MDY Industries v. Blizzard, discussed in my prior post, rested not on copyright infringement, but on a violation of the Digital Millenium Copyright Act (DMCA) provisions regarding circumvention of access controls.

As discussed previously, Section 1201(a)(1) prohibits “circumvent[ing] a technological measure that effectively controls access to a work protected under” Title 17. 17 U.S.C. § 1201(a)(1)(A). Both the Fourth Circuit, in MGE UPS Systems, Inc. v. GE Consumer and Industrial, Inc. et al., and the Federal Circuit, in Chamberlin Group Inc. v. Skylink Technologies, Inc., have held that the "DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” MGE UPS Systems, Inc. v. GE Consumer and Industrial, Inc. et al., No. 08-10521, 2010 WL 2820006 (5th Cir. July 20, 2010). In other words, circumvention that does not infringe or facilitate the infringement of a copyright is not actionable under Section 1201(a).

The Ninth Circuit took another approach. Looking to both the text of the relevant provisions as well as the legislative history of the DMCA, the court explained that there was no textual support for the requirement of an "infringement nexus" under Section 1201(a), which addresses circumventing controls over access only. In contrast, Section 1201(b) of the DMCA addresses circumvention of protection over copyright. The court, applying this logic, upheld the lower court’s DMCA verdict.

The MDY Industries decision and resulting circuit split could have significant implications. Under the Ninth Circuit’s approach, owners of copyrights in digital works — software, video games, movies, and pretty much everything else these days — can much more easily challenge uses of their products that are deemed harmful for various reasons, but which might not otherwise be infringing uses. On the flip side, the decision could potentially chill uses of copyrighted works that are typically considered "fair" because such uses happen to require circumvention of access controls in the first instance. It will be interesting to see whether MDY petitions the Supreme Court to consider the matter. For now, copyright owners filing in Ninth Circuit courts can consider getting a little more aggressive with regard to DMCA access violations, while users circumventing access controls may wish to tread a bit more lightly.

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