Page:Fair Circumvention.djvu/11

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2008]
11
FAIR CIRCUMVENTION

which was posted on Johansen’s web site and quickly spread to hundreds of other sites worldwide.[1]

Journalist Eric Corley copied the DeCSS program to his web server and made it available for readers to download.[2] This prompted a DMCA lawsuit against Corley and his publishing company. Corley removed DeCSS from his web site following the district court’s grant of a preliminary injunction to the movie studio plaintiffs,[3] but maintained hyperlinks from his site to other sites that “purport[ed] to offer [the software] for download.”[4] The district court found that both Corley’s original posting of the DeCSS program and his posting of hyperlinks to other web sites where the program had been made available violated Section 1201(a)(2)’s prohibition on trafficking in access control circumvention technologies.[5]

The court reasoned that CSS was a “technological measure that effectively controls access to” a copyrighted work—to wit, the movie contained on a DVD disc. It rejected the defendants’ arguments that CSS could not be said to “effectively control access to” the copyrighted content of a DVD because it was a minimal form of encryption.[6] The court reasoned that because CSS, “‘in the ordinary course of its operation, requires the application of information or a process or a treatment, with the authority of the copyright owner, to gain access to a work,’”[7] it satisfied the statutory definition of “effectively control access.” The protections of the DMCA, in other words, did not turn upon whether the measure was actually “effective”—that is, whether it functioned in such a way as to frustrate unauthorized attempts to access the work.[8] Rather, the court reasoned, the dispositive question was whether the copyright owners had granted express permission for the

  1. Reimerdes, 111 F. Supp. 2d at 311.
  2. Id. at 312.
  3. See Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000) (granting preliminary injunction).
  4. Reimerdes, 111 F. Supp. 2d at 311, 312-13 & n.98.
  5. Id. at 316-24 (finding violation of Section 1201(a)(2) based on Corley’s posting of DeCSS program), 324-25 (finding violation based on posting of hyperlinks to other web sites where DeCSS was available for download); see also supra note 18 and accompanying text.
  6. See Reimerdes, 111 F. Supp. 2d at 317 (internal quotation marks omitted).
  7. Id. (quoting 17 U.S.C. § 1201(a)(3)(B) (2006)).
  8. See id. at 318 (“CSS ‘effectively controls access’ to copyright DVD movies. It does so, within the meaning of the statute, whether or not it is a strong means of protection.”).