(i) designed or produced primarily for circumvention; (ii) made available despite
only limited commercial significance other than circumvention; or (iii) marketed
for use in circumvention of the controlling technological measure.^1254The court ruled that Chamberlain had failed to satisfy both the fourth and fifth elements
of the test. With respect to the fifth element, Chamberlain had neither alleged copyright
infringement nor explained how the access provided by the defendant’s transmitter facilitated
third party infringement of any of its copyright rights. Instead, the defendant’s transmitter
merely enabled the end user to make legitimate use of the computer program in the GDO.^1255
Nor had Chamberlain established the fourth element. The record established that
Chamberlain had placed no explicit restrictions on the types of transmitter that the homeowner
could use with its system at the time of purchase.^1256 “Copyright law itself authorizes the public
to make certain uses of copyrighted materials. Consumers who purchase a product containing a
copy of embedded software have the inherent legal right to use that copy of the software. What
the law authorizes, Chamberlain cannot revoke.”^1257 Although this statement suggests that a
plaintiff could not even use contractual prohibitions to eliminate authorization to circumvent
controls to gain access to the software in a way that did not facilitate infringement, the court
backed away from any such absolute principle in a footnote: “It is not clear whether a consumer
who circumvents a technological measure controlling access to a technological measure
controlling access to a copyrighted work in a manner that enables uses permitted under the
Copyright Act but prohibited by contract can be subject to liability under the DMCA. Because
Chamberlain did not attempt to limit its customers’ use of its product by contract, however, we
do not reach that issue.”^1258
In conclusion, then, the court held, “The Copyright Act authorized Chamberlain’s
customers to use the copy of Chamberlain’s copyrighted software embedded in the GDOs that
they purchased. Chamberlain’s customers are therefore immune from § 1201(a)(1)
circumvention liability. In the absence of allegations of either copyright infringement or §
1201(a)(1) circumvention, Skylink cannot be liable for § 1201(a)(2) trafficking.”^1259 The court
therefore affirmed the district court’s grant of summary judgment in favor of Skylink.^1260
(^1254) Id. at 1203.
(^1255) Id. at 1198, 1204.
(^1256) Id. at 1183.
(^1257) Id. at 1202.
(^1258) Id. at 1202 n.17.
(^1259) Id. at 1204.
(^1260) Id.