The Federal Circuit began its analysis by ruling that the plaintiff has the burden under an anti-
circumvention claim to prove that the defendant’s access to its copyrighted work was not
authorized. The court derived this holding from the distinction between a copyright – which is a
property right – and the anti-circumvention provisions – which do not establish a new property
right, but rather only a new cause of action for liability. Under a copyright (a property right), the
plaintiff need only establish copying, and the burden then shifts to the defendant to prove a
defense. By contrast, under the anti-circumvention provisions, the language of the statute
defines the cause of action in terms of a circumvention or trafficking without authority of the
copyright owner. The plaintiff therefore has the burden to prove that the defendant’s access was
unauthorized.^1242
In a very significant ruling, the Federal Circuit held that the anti-circumvention
provisions of Section 1201 do not apply to all forms of circumvention to gain access to a work,
but rather only to circumventions that accomplish “forms of access that bear a reasonable
relationship to the protections that the Copyright Act otherwise affords copyright owners”^1243 –
in other words, circumventions that facilitate some form of copyright infringement.^1244
Conversely, “defendants whose circumvention devices do not facilitate infringement are not
subject to § 1201 liability.”^1245
The court reached this conclusion based on three rationales. First, the court noted that in
the statutory language itself, “virtually every clause of § 1201 that mentions ‘access’ links
‘access’ to ‘protection.’”^1246 Second, the court found that every decision cited by the plaintiff
finding anti-circumvention liability involved a circumvention that facilitated or was coupled with
copyright infringement. In the Reimerdes case, the DeCSS program allowed the user to
circumvent the CSS protective system and to view or to copy a motion picture from a DVD,
whether or not the user had a DVD player with the licensed technology. In the Lexmark case,
the court ruled that the defendant’s conduct in copying the Toner Loading Program constituted
copyright infringement. In the Gamemasters case, the defendant conceded that its product made
temporary modifications to the plaintiff’s copyrighted computer program. In the Real Networks
case, the defendant’s product allegedly disabled Real Networks’ copy switch, which defeated the
copyright owner’s ability to control copying upon streaming of the work.^1247 “In short, the
access alleged in all [these] cases was intertwined with a protected right.”^1248
Third, the court believed that a broad reading of the anti-circumvention provisions to
prohibit all forms of unauthorized access, whether or not protected copyright rights were thereby
implicated, as urged by Chamberlain, would risk too much potential harm to competition.
(^1242) Id. at 1193.
(^1243) Id. at 1202.
(^1244) Id. at 1195, 1203.
(^1245) Id. at 1195.
(^1246) Id. at 1197.
(^1247) Id. at 1198-99 (citations omitted).
(^1248) Id. at 1199.