title,” whereas Section 1201(b) is directed to protecting “a right of a copyright owner.”^870
Noting that neither Section 1201(a)(1) nor 1201(a)(2) explicitly refer to traditional copyright
infringement under Section 106, the court read Section 1201(a) “as extending a new form of
protection, i.e., the right to prevent circumvention of access controls, broadly to works protected
under Title 17, i.e., copyrighted works.”^871 The court also noted that the two specific examples
of unlawful circumvention recited under Section 1201(a) – descrambling a scrambled work and
decrypting an encrypted work – are acts that do not necessarily infringe or facilitate infringement
of a copyright. Descrambling or decrypting do not necessarily result in someone’s reproducing,
distributing, publicly performing, or publicly displaying the copyrighted work, or creating
derivative works based on the copyrighted work.^872
In addition, the court noted another significant difference between Section 1201(a) and
Section 1201(b) in that Section 1201(a)(1)(A) prohibits circumventing an effective access
control measure, whereas Section 1201(b) prohibits trafficking in circumvention devices, but
does not prohibit circumvention itself because, as the Senate Judiciary Committee report noted,
such conduct was already outlawed as copyright infringement, so no new prohibition was
necessary.^873 Accordingly, the court concluded, “This difference reinforces our reading of §
1201(b) as strengthening copyright owners’ traditional rights against copyright infringement and
of § 1201(a) as granting copyright owners a new anti-circumvention right.”^874 The court found
the legislative history of the anti-circumvention provisions of the DMCA to reinforce its reading
that Section 1201(a) creates a new anti-circumvention right distinct from copyright infringement,
while Section 1201(b) strengthens the traditional prohibition against copyright infringement.^875
The Ninth Circuit noted that its reading of the anti-circumvention provisions put it in
conflict with the Federal Circuit’s decisions in the Chamberlain and Storage Tech cases, in
which the Federal Circuit required Section 1201(a) plaintiffs to demonstrate that the
circumventing technology infringes or facilitates infringement of the plaintiff’s copyright – what
the Ninth Circuit referred to as an “infringement nexus requirement.”^876 Although the Ninth
Circuit stated that it appreciated the policy considerations expressed by the Federal Circuit in
Chamberlain, the Ninth Circuit found itself unable to follow the Federal Circuit’s infringement
nexus requirement because it is contrary to the plain language of the statute and would lead to
statutory inconsistencies in the DMCA. For example, under the Federal Circuit’s construction,
Congress’s creation of a mechanism in Section 1201(a)(1)(B)-(D) for the Librarian of Congress
(^870) Id. at 29-30.
(^871) Id. at 31.
(^872) Id.
(^873) Id. at 32.
(^874) Id. The court also noted that, if a copyright owner puts in place an effective measure that both (1) controls
access and (2) protects against copyright infringement, a defendant who traffics in a device that circumvents
that measure could be liable under both Sections 1201(a) and 1201(b). Id. at 35.
(^875) Id. at 35-40.
(^876) Id. at 40.