Page:Fair Circumvention.djvu/17

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2008]
17
FAIR CIRCUMVENTION

question before it, because the copyright statute itself supplied the necessary “authorization” for Skylink’s access.[1] So long as Skylink’s product was designed to enable uses that the copyright statute permitted, in other words, trafficking in such a device did not constitute a DMCA violation notwithstanding Chamberlain’s denial of permission.[2] The court rejected Chamberlain’s argument (which the Reimerdes court surely would have accepted) that “all such uses of products containing copyrighted software to which a technological measure controlled access are now per se illegal under the DMCA unless the manufacturer provided consumers with explicit authorization.”[3]

Although the court declared that its “inquiry ends with [the] clear language” of the DMCA,[4] it went on to consider the issue in light of the statute’s background, structure, and purpose. It found that the “[s]tatutory structure and legislative history both make it clear that § 1201 applies only to circumventions reasonably related to protected rights.”[5] Quoting from the legislative history, the court emphasized Congress’s intention “‘to specify, with as much clarity as possible, how the right against anticircumvention would be qualified to maintain balance between the interests of content creators and information users.’”[6] That balance would be upset, the court reasoned, if the statute were read as Chamberlain wished. The crux of the matter, in the court’s view, was Chamberlain’s insistence “that no necessary connection exists between access and copyrights[7]—that is, that anti-circumvention liability under the DMCA was unrelated to the question whether the defendant had infringed, or contributed to the infringement, of plaintiff’s copyrights. Noting that the DMCA was enacted in part to deter copyright infringement, the court reasoned that it would be illogical to construe the statute so as to make irrelevant the question whether the plaintiff actually faced potential infringement. The court concluded that “Congress could not have intended such a broad reading of the DMCA.”[8]

As a policy matter, this interpretation of the DMCA may have much to commend it. It harmonizes the DMCA with the remainder of the Copyright Act in a fashion that self-consciously seeks to preserve the

  1. See Chamberlain, 381 F.3d at 1193 (“[T]he copyright laws authorize consumers to use the copy of Chamberlain’s software embedded in the GDOs that they purchased. . . . [C]opyright laws authorize members of the public to access a work.”); id. at 1182 (“Skylink’s accused devices enables only uses that copyright law expressly authorizes, and is therefore presumptively legal.”).
  2. Cf. supra note 71.
  3. Chamberlain, 381 F.3d at 1193.
  4. Id. at 1194.
  5. Id. at 1195 (emphasis added). This is, to be sure, not a holding that actual infringement must be proven before DMCA liability can attach. Short of that showing, however, it is not clear what the court means by the requirement of a “reasonable relation” between infringement of the plaintiff’s copyright and the viability of its claim under the DMCA.
  6. Id. at 1196 (quoting H.R. Rep. No. 105-551, at 26 (1998)).
  7. Id. at 1197.
  8. Id.; see also infra note 175.