Advanced Copyright Law on the Internet

constituted circumvention in violation of Section 1201 and sought statutory damages. The court
rejected this argument, citing authority that in the Third Circuit, the legal theory of
circumvention had been applied solely to circumstances where the conduct complained of
entailed circumventing protective measures such as passwords, server software, or other
technological barriers, as opposed to the embedded copyright tag lines and watermark at issue in
the present case. Accordingly, the plaintiff could not recover damages for circumvention,
although it could recover damages for removal of CMI.^833

(vii) Eyepartner v. Kor Media Group

In Eyepartner, Inc. v. Kor Media Group LLC,^834 the plaintiff licensed the defendant its
software under a limited license to use the software but not to modify or access the encrypted
source code. The license agreement expressly prohibited any acts to modify, translate, reverse
engineer, decompile, disassemble or create derivative works of the software. The defendants
were unhappy with the quality of the software and, rather than pay for the additional application
programming interface service that might have addressed the defendants’ concerns, they chose to
make their own modifications to the plaintiff’s code by decrypting and disassembling the source
code. The defendants argued that it was a fair use to disassemble the source code so that it could
be modified to make the program function as they wished. The court ruled, however, that such a
defense could absolve liability only as to willful copyright infringement but not as to the
plaintiff’s claims for violation of the anti-circumvention provisions. The court further concluded
that, in any event, fair use was inappropriate because the defendants had contractually waived
their rights to modify the code. The plaintiffs had used an encrypting technology called IonCube
to prevent the defendants from accessing the source code of the software, which the defendants
had circumvented using a “deZender” program. The court found that such acts violated Section
1201(a)(3)(A) of the DMCA and issued a preliminary injunction against the defendants.^835

(viii) Granger v. Dethlefs

The plaintiff in this case created a computer program, the Pennsylvania Title Insurance
Rate Calculator, designed to calculate or estimate the cost of real estate title insurance in the
State of Pennsylvania. The defendants placed an allegedly infringing version of the Rate
Calculator on a web page. The plaintiff asserted violations of both the anti-circumvention
provisions and the integrity of copyright management information provisions of the DMCA. The
court granted the defendants’ motion to dismiss both claims on the predicate ground that, to
establish a claim under Sections 1201 and 2102, a plaintiff must show that the material he claims
is circumvented is copyrighted. Here, the plaintiff had not done so. In a previous litigation, the
plaintiff had been unable to establish that he had independently created the JavaScript source
code for the Rate Calculator and therefore owned a copyright in the Rate Calculator. The court
in the present case found that the plaintiff was bound by that earlier ruling under the doctrine of

(^833) Granger v. One Call Lender Services, LLC, 2012 U.S. Dist. LEXIS 104885 at 2-4, 14-15 (E.D. Pa. July 26,
2012).
(^834) 2013 U.S. Dist. LEXIS 98370 (S.D. Fla. July 15, 2013).
(^835) Id. at 1-23.