The court was also not convinced that the addition of a bar code or other functional
device on the coupon qualified it as a unique copyrighted work. But in any event, if Coupons
wanted to make the argument, then the court noted that it needed to actually allege it in the
complaint, and the plaintiff’s reference to “unique coupons” in the complaint was not sufficient
to put the defendant on notice of the claims against him. The court ruled that the plaintiff needed
to clarify which theory it was pursuing (a “unique” coupon theory or a “general” coupon theory).
Accordingly, the court dismissed the DMCA cause of action with leave to amend the complaint
to clarify whether the plaintiff was asserting a claim under a Section 1201(b) “rights controls”
theory (i.e., allowing users to print more than the authorized number of copies) or a claim under
a Section 1201(a) “access controls” theory (i.e., “unique” coupons).^888
After the plaintiff amended its complaint, the defendant again brought a motion to
dismiss, which the court denied.^889 In the amended complaint, the plaintiff claimed that each
printed coupon’s identification number marked it as an authorized copy of a copyrighted work,
and did not create a derivative work. The plaintiff asserted claims under both Sections 1201(a)
and 1201(b). The court ruled that the plaintiff had sufficiently alleged facts that its software
controlled access to the printing of the copyrighted coupon to state a claim under Section
1201(a). With respect to Section 1201(b), the court ruled that the plaintiff had adequately
alleged that its software controlled copying and distribution in two ways: the registry key
limited the number of coupons distributed to a single computer (simultaneously limiting the
number of authentic copies that the computer could print), and the software’s counter limited the
number of authentic coupons distributed as a whole. The court held that, although the plaintiff
would have to prove that its software actually worked as both an access and use control, it had
sufficiently alleged facts that supported its theory that the defendant had violated Section
1201(b), and the motion to dismiss was denied.^890
(x) CoxCom, Inc. v. ChafeeCoxCom leased cable boxes to its subscribers that enabled them to descramble incoming
signals for viewing and that transmitted certain information from subscribers back to CoxCom,
including billing information association with purchase of pay-per-view programming. The
defendant sold a digital cable filter that filtered out low-frequency signals, including the return
transmissions from the cable box containing purchase information. The court noted that the
filters were not illegal, and had innocuous uses, such as allowing cable television subscribers to
enhance viewing quality by filtering out interference from FM radio broadcast towers, shortwave
radios, and home appliances. However, the defendants marketed the filters to their customers as
capable of filtering out pay-per-view charges.^891 The plaintiffs brought claims under the DMCA
(^888) Id. at 5.
(^889) Coupons, Inc. v. Stottlemire, 588 F. Supp. 2d 1069, 1072 (N.D. Cal. 2008).
(^890) Id. at 1073-75.
(^891) CoxCom, Inc. v. Chafee, 536 F.3d 101, 104-05 (1st Cir. 2008).