On a motion for a preliminary injunction, the court found the plaintiff likely to prevail on
these claims. The court rejected the defendant’s argument that CAPTCHA was not a system or a
program that qualified as a technological measure under the DMCA because it was simply an
image, and it was designed to regulate ticket sales, not to regulate access to a copyrighted work.
The court ruled that the DMCA does not equate its use of the term “technological measure” with
the defendant’s terms “system” or “program,” and that in any case the CAPTCHA system was a
technological measure within the DMCA because most automated devices could not decipher
and type the stylized random characters the system generated in order to proceed to the
copyrighted ticket purchase pages.^851 Thus, CAPTCHA qualified as a technological measure
that restricted access to copyrighted works within the purview of Section 1201(a)(2). Similarly,
it also fell within the purview of Section 1201(b)(1) because it protected rights of the copyright
owner by preventing automated access to the Ticketmaster ticket purchase web pages, thereby
preventing users from copying those pages. Accordingly, the court issued a preliminary
injunction prohibiting the defendant from trafficking in any computer program or other
automatic devices to circumvent copy protection systems in Ticketmaster’s web site and from
using any information gained from access to Ticketmaster’s web site to create computer
programs to circumvent Ticketmaster’s copy protection and web site regulation systems.^852
(v) The Tracfone CasesIn TracFone Wireless, Inc. v. Pak China Group Co., Ltd.,^853 the defendants were engaged
in bulk purchase, reflashing, and redistributing TracFone phones. The plaintiff brought claims
under Section 1201 for circumvention and trafficking in circumvention technology. The
defendants failed to answer and were in default. The court found the defendants guilty of the
alleged violations of Section 1201 and imposed the maximum statutory damages of $37,707,500
based on the sale of at minimum 15,083 reflashed TracFone prepaid phones.^854
In TracFone Wireless, Inc. v. Technopark Co., Ltd.,^855 the court found the defendants
liable under Section 1201 for the unauthorized unlocking or reflashing of TracFone phones and
for trafficking in certain unlocking devices known as “Octopus Boxes” in furtherance of its
unlocking scheme. The court also found the defendants liable for facilitating co-conspirators
who were trafficking in the service of circumventing TracFone’s technological measures. The
court imposed a maximum statutory damages award of $10,000 for the four unlocking or
reflashing devices manufactured by the defendants and sold by distributors that TracFone was
aware of.^856
In addition, see the numerous TracFone cases discussed in Section II.G.1(a)(1) above.(^851) Id. at 1112.
(^852) Id. at 1112, 1116.
(^853) 843 F. Supp. 2d 1284 (S.D. Fla. 2012).
(^854) Id. at 1301.
(^855) 2012 U.S. Dist. LEXIS 58449 (S.D. Fla. Apr. 9, 2012).
(^856) Id. at *4, 13-14 & 15-16.