to grant exemptions to certain non-infringing behavior from Section 1201(a)(1) liability would
be unnecessary if an infringement nexus requirement existed.^877
Turning to application of its construction of the anti-circumvention provisions to the facts
of the case, the Ninth Circuit agreed with the district court that Glider did not violate Section
1201(a)(2) with respect to WoW’s literal elements and individual non-literal elements, because
Warden did not effectively control access to those WoW elements. The literal elements (the
game client’s software code) were available on a player’s hard drive once the game client
software was installed, and the non-literal components could be accessed by a user without
signing on to the server by using independently purchased computer programs to call up the
visual images or the recorded sounds within the game client software stored in files on the hard
disk. Because a player needed not encounter Warden to access WoW’s individual non-literal
elements, Warden did not effectively control access to those elements.^878 On this point, the
Ninth Circuit founds its conclusion in accord with the Sixth Circuit’s decision in the Lexmark
case,^879 in which mere purchase of one of the plaintiff’s printers allowed “access” to the
copyrighted program, because it could be read directly from the printer memory without
encountering the printer’s authentication sequence.^880
The court next found Blizzard to be liable for trafficking in violation of Section
1201(a)(2) with respect to WoW’s dynamic non-literal elements, which constituted a copyrighted
work available only through the WoW server. The Ninth Circuit noted a split between other
circuits with respect to the meaning of the phrase “circumvent a technological measure ...
without the authority of the copyright owner.” The Federal Circuit concluded in Chamberlain
that the definition of “circumvent a technological measure” imposes an additional requirement
on a Section 1201(a)(2) plaintiff: to show that the defendant’s circumventing device enables
third parties to access the copyrighted work without the copyright owner’s authorization (citing
Chamberlain, 381 F.3d at 1193).^881 The Second Circuit adopted a different view, “that §
1201(a)(3)(A) plainly exempts from § 1201(a) liability those whom a copyright owner authorizes
to circumvent an access control measure, not those whom a copyright owner authorizes to access
the work” (citing Corley, 273 F.3d at 333 & n.15).^882 The Ninth Circuit found “the Second
Circuit’s view to be the sounder construction of the statute’s language, and [we] conclude that §
1201(a)(2) does not require a plaintiff to show that the accused device enables third parties to
access the work without the copyright owner’s authorization. Thus, Blizzard has satisfied the
(^877) Id. at 45-46. The Ninth Circuit noted, that like the Chamberlain court, it need not reach the question of the
relationship between fair use and violations of Section 1201. MDY had not claimed that Glider use was a fair
use of WoW’s dynamic non-literal elements. Accordingly, the court left open the question whether fair use
might serve as an affirmative defense to a prima facie violation of Section 1201. Id. at 48 n.12.
(^878) Id. at 52-53.
(^879) See Section II.G.1(a)(15)(i) below.
(^880) Id. at 53-54.
(^881) Id. at *56 n.16.
(^882) Id.