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
Relying on this Federal Circuit precedent [Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed. Cir. 2004) [enhanced
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.
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.
Access the full version of The DMCA Re-Fanged: Copyright
Protection for Software Security Devices with your lexis.com ID. Additional fees
may be incurred. (approx. 5 pages)
If you do not have a lexis.com ID, you can purchase the
Emerging Issues Analysis content through our lexisONE Research Packages