issue preclusion. Accordingly, the plaintiff could not prove that the defendants violated the
DMCA because where there is not enough evidence to show copyright ownership, it cannot be
proved that any copyrighted material was altered or removed. The plaintiff’s circumvention of
copyright protection and integrity of copyright management information claims were therefore
barred.^836
(2) Prohibition on DevicesThe DMCA also outlaws devices and technology directed to circumvention of
technological copyright protection measures. Specifically, Sections 1201(a)(2) and 1201(b)
prohibit the manufacture, import, offer to the public, or trafficking in any technology, product,
service, device, component, or part thereof that is primarily designed or produced for the purpose
of circumventing a technological measure that effectively “controls access to” a copyrighted
work or “protects a right of a copyright owner,” or has only limited commercially significant
purpose or use other than to circumvent such technological measure, or is marketed for use in
circumventing such technological protection measure. Section 1201(b)(2) provides that a
technological measure “effectively protects a right of a copyright owner” if the measure “in the
ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a
copyright owner.” Although trafficking in these types of prohibited devices might well
constitute contributory infringement, Sections 1201(a)(2) and 1201(b) make it a direct statutory
violation subject to criminal and civil penalties.
It should be noted that, although Sections 1201(a)(2) and 1201(b) in combination prohibit
devices designed to circumvent both technological measures that control access to a copyrighted
work and that protect a right of a copyright owner, Section 1201(a)(1) prohibits conduct that is
directed only to the former, but not the latter. The rationale for this distinction was apparently a
belief that anyone should be free to circumvent a measure protecting rights of a copyright owner
in order to make fair use of a work,^837 whereas gaining access in the first instance to a
copyrighted work without the owner’s permission cannot be a fair use.^838
(^836) Granger v. Dethlefs, 2014 U.S. Dist. LEXIS 76055 at *1-3, 10-18 & 21-22 (E.D. Penn. June 2, 2014).
(^837) See The Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary (Dec. 1998) at 4
(explaining that the distinction between Section 1201(a) and (b) as to the act of circumvention in itself was “to
assure that the public will have the continued ability to make fair use of copyrighted works. Since copying may
be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a
technological measure that prevents copying.”). Similarly, the Copyright Office noted in its rationale for the
first set of exemptions it established from the prohibition against circumvention of technological measures
controlling access to a work: “The decision not to prohibit the conduct of circumventing copy controls was
made, in part, because it would penalize some noninfringing conduct such as fair use.” 65 Fed. Reg. 64556,
64557 (Oct. 27, 2000).
(^838) Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913, 942 (N.D. Cal. 2009) (“The prohibition
on individual circumvention conduct only applies with respect to access protection technologies (because fair
use can never be an affirmative defense to the act of gaining unauthorized access), not to technologies that
prevent copying.”); Inna Fayenson, “Anti-Circumvention Provisions of The Digital Millennium Copyright Act,”
Journal of Internet Law, Apr. 1999, at 9, 10.