The DMCA Re-Fanged: Copyright Protection for Software Security Devices

The DMCA Re-Fanged: Copyright Protection for Software Security Devices

The Digital Millennium Copyright Act (DMCA) makes it unlawful to circumvent a technological measure that effectively controls access to a work protected by copyright and to traffic in devices designed to accomplish that end. Previously, wonderment was expressed at the Fifth Circuit's interpretation of the DMCA in MGE UPS Sys. v. GE Consumer & Indus., 612 F.3d 760 (5th Cir. Tex. 2010) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law]. Now, the Ninth Circuit has issued an opinion with a very different reading of the DMCA. In this Analysis, Thomas Carey, of Sunstein Kann Murphy & Timbers LLP, examines the DMCA claims in both MGE UPS Systems and MDY Indus., LLC v. Blizzard Entm't, Inc., 2010 U.S. App. LEXIS 25424 (9th Cir. Ariz. Dec. 14, 2010) [enhanced version / unenhanced version]. He writes:

     Relying on this Federal Circuit precedent [Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2004) [enhanced version / unenhanced version]], the Fifth Circuit concluded in MGE UPS Systems that the unauthorized use of the hacked software was not a DMCA violation because there was no evidence that the defendant had created the hacked version of the software. The court did not view the DMCA as giving a copyright owner the power to prevent the use of the software it had created.

     . . . .

     [In MDY Indus.,] Those wishing to advance through these levels [in the video game, World of Warcraft] and accumulate fantasy rewards without actually playing the game are able to purchase Glider, a software product made by MDY Industries, LLC. Glider plays the game for them while they are off doing something in the real world.

     Players who earned their fantasy booty the hard way were miffed to learn of this practice. Blizzard, the purveyor of World of Warcraft, responded by banning the use of Glider in its license agreement and by installing Warden, software that inspects the habits of players to detect and banish those using Glider. MDY Industries responded by offering, on a subscription basis, a premium version of Glider that Warden could not detect.

     . . . .

     . . . . [T]he Ninth Circuit spurned the Federal Circuit precedent. It held that the DMCA's proscription is not limited to the circumvention of technological measures intended to thwart copyright infringement. The DMCA, said the court, creates a new right not previously available to copyright holders: the right to control access to their works.

(footnotes omitted)

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