David Nimmer discusses extension of DMCA to mod chips used to control game play

Of all the provisions of the Copyright Act of 1976, the most fiendish to interpret have been those added in 1998 by the Digital Millennium Copyright Act. Within the DMCA, the greatest difficulties arise as to the anti-circumvention features added by 17 U.S.C. § 1201. The cases have turned from books, movies, and music to such domains as printer toner cartridges and garage door openers. In the two recent cases of Sony Computer Entm't Am., Inc. v. Filipiak and Sony Computer Entm't Am., Inc. v. Divineo, Inc., the courts applied the DMCA to embedded fonts and mod chips. David Nimmer analyzes the correct and incorrect aspects of those two rulings. He writes:
     In particular, Sony Computer Entertainment filed suit against purveyors of “mod chips” that “circumvent the technological copyright protection measures in PlayStations consoles and allow users to play unauthorized and illegal copies of PlayStation video games” that users “burnt” for such purposes. In [Filipiak], liability was straightforward—after consenting to an injunction that he did not intend to abide by, defendant continued in his ways “intentionally and in bad faith.” Besides admitting, “Yeah, I shouldn’t have done that,” defendant also violated the court’s discovery orders by deleting his hard drive days before producing it to Sony in discovery.
     In [Divineo], defendant did not similarly roll over. Instead, he disputed Sony’s evidence that the primary or exclusive function of the technologies in question was to circumvent Sony’s technological measures. He offered testimony about ways in which his product could be used with the PlayStation systems without infringing Sony’s copyrights.
     . . . .
. . . It is important to take [the Divineo] ruling in stages. Basically, it consists of two determinations, each of which must be tested.
• First, the court concludes that unauthorized access to a copyrighted work (via circumventing an effective technological measure) is actionable, even if the underlying purpose of the access is to achieve fair use of the copyrighted material. That seemingly counterintuitive conclusion sets the fair use doctrine on its head—if Bill is privileged under the fair use doctrine to copy a Sony show, why should Yolanda be culpable for helping Bill? Yet a searching analysis of the implicated provision shows that this surprising result is actually a correct application of the statute. Thus far, the court successively navigates the DMCA mine-field.
• Second, the court concludes that consumers’ usage of legally purchased, imported games on a United States PlayStation console violates the anticircumvention right under law. In contrast to the first ruling, that conclusion is easy to swallow; after all, legions of cases have ruled that it violates copyright law to buy a lawful product abroad and import it into the without authorization from the copyright owner. So that ruling simply applies the same logic to the DMCA. Yet, upon investigation, it turns out that that conclusion cannot pertain, under the twists and turns of 17 U.S.C. § 1201 as enacted. In this instance an unnoticed mine blows up the court's analysis.
(citations omitted.)