No. 08-10521
include “an opportunity to view the copyrighted work.” Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978) (citing 3 M. Nimmer, Copyright § 13.02(A) (1978)). Reading this definition alongside definitions from Merriam-Webster’s dictionary and Black’s Law Dictionary, MGE concludes that “access” means “viewing, making use of, or using the protected work.” MGE argues that dongles prevented access to its software and that without using both this hardware key and its corresponding password, a user cannot view, gain access to, or make use of the software.
However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners. See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1202 (Fed. Cir. 2004). The Federal Circuit, in analyzing the DMCA’s anti-circumvention provision, concluded that it “convey[s] no additional property rights in and of themselves; [it] simply provide[s] property owners with new ways to secure their property.” Id. at 1193–94. Indeed, “virtually every clause of § 1201 that mentions ‘access’ links ‘access’ to ‘protection.’” Id. at 1197. Without showing a link between “access” and “protection” of the copyrighted work, the DMCA’s anti-circumvention provision does not apply. The owner’s technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing. Id. at 1204; see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004) (finding no DMCA anti-circumvention liability where an authentication sequence in a printer microchip blocked one
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