does not violate the anti-circumvention provisions of the DMCA, and the unauthorized
sharing of a valid password does not constitute prohibited trafficking. Accordingly, the
court granted the defendant’s motion to dismiss the plaintiff’s DMCA claim with leave to
amend.^1170
(xxii) Dice Corp. v. Bold TechnologiesBoth the plaintiff and the defendant provided software for companies in the alarm
industry. The defendant wrote an extraction program to extract customer data from the
plaintiff’s software (written in Thoroughbred basic) and convert it into a format that
could be read by the defendant’s software (written in C++ and Visual Basic). The
database files where the customer data was stored by the plaintiff’s software were not
subject to any access or security features and could be accessed by anyone who had a
copy of Thoroughbred basic. No administrative password was required to run queries on
the database.^1171
The plaintiff’s complaint alleged that encryption of its software constituted a
technological measure that effectively controlled access to its products and that the
defendant’s use of former employees of the plaintiff with knowledge of methods to
circumvent such encryption permitted the defendant to access the plaintiff’s software
without permission, in violation of the anti-circumvention provisions of the DMCA. The
court granted the defendant summary judgment on this claim, finding that the plaintiff
had produced no evidence that the defendant accessed any source code (which one of the
plaintiff’s employees admitted during discovery was not in fact encrypted) or other
copyrighted material of the plaintiff. Rather, the defendant had accessed through its
extraction program only customer data that was owned by the user of the plaintiff’s
software, which data was neither encrypted nor protected against access by any password
or other technological measure.^1172
(14) Criminal Prosecutions Under the DMCA(i) The Sklyarov/Elcomsoft CaseDmitry Sklyarov, a 27-year-old Russian programmer who worked for a Russian company
called Elcomsoft, helped create the Advanced eBook Processor (AEBPR) software, which
enabled eBook owners to translate from Adobe’s secure eBook format into the more common
Portable Document Format (PDF). The software worked only on legitimately purchased eBooks.
Sklyarov was arrested at the behest of Adobe Systems, Inc. on July 17, 2001 in Las Vegas after
he delivered a lecture at a technical convention, and charged by the Dept. of Justice with criminal
(^1170) Navistar, Inc. v. New Baltimore Garage, Inc., 2012 U.S. Dist. LEXIS 134369 at *2-5, 13-15 & 29 (N.D. Ill.
Sept. 20, 2012).
(^1171) Dice Corp. v. Bold Technologies, 913 F. Supp. 2d 389, 392, 395-96 & 400 (E.D. Mich. 2012).
(^1172) Id. at 409-11.