Finally, 321 Studios argued that, under the common requirement of both Sections
1201(a)(2) and 1201(b)(1), its DVD Copy Plus software was not primarily designed and
produced to circumvent CSS, but rather was designed and produced to allow users to make
copies of all or part of a DVD, and that the ability to unlock CSS was just one of the features of
its software. The court rejected this argument, noting that Sections 1201(a)(2) and 1201(b)(1)
both prohibit any technology or product “or part thereof” that is primarily designed or produced
for circumvention. Because it was undisputed that a portion of 321 Studios’ software was solely
for the purpose of circumventing CSS, that portion of the software violated the DMCA.^1124
Accordingly, the court enjoined 321 Studios from manufacturing, distributing, or otherwise
trafficking in any type of DVD circumvention software.^1125
(ix) I.M.S. Inquiry Management Systems, Ltd. v.
Berkshire Information Systems, Inc.
This case reached the opposite result from the 321 Studios v. Metro Goldwyn Mayer
case, and held that the unauthorized use of an otherwise legitimate, owner-issued password does
not constitute a “circumvention” of a technological measure under the DMCA.^1126 The plaintiff
owned a web-based service that provided information on tracking magazine advertising
exclusively to its clients through proprietary passwords. The defendant obtained a user
identification and password issued to a third party and made unauthorized use of the same to gain
access to the plaintiff’s web site, from which the defendant downloaded approximately 85% of
the report formats and copied those formats into its competing service.^1127 The court ruled there
was no DMCA violation because “what defendant avoided and bypassed was permission to
engage and move through the technological measure from the measure’s author. ... Defendant
did not surmount or puncture or evade any technological measure to do so; instead, it used a
password intentionally issued by plaintiff to another entity.”^1128
(x) Paramount Pictures Corp. v. 321 Studios.The court in this case, in a very short opinion citing the Corley and Reimerdes cases and
for the reasons stated therein, held that 321 Studios violated the anti-circumvention provisions of
the DMCA by manufacturing and selling its software product that permitted the possessor of a
DVD encoded with CSS to decode CSS and thereby make identical copies of the DVD. The
(^1124) 321 Studios, 307 F. Supp. 2d at 1098. The court ruled that it could not determine on summary judgment
whether the software had only limited commercially significant purposes other than circumvention, and that
would be an issue a jury would have to decide. Id. The court also rejected 321 Studios’ challenge to the
constitutionality of the anti-circumvention provisions on the ground that is unconstitutionally restricted 321
Studios’ right to tell others how to make fair use of a copyrighted work, impermissibly burdened the fair use
rights of others, and exceeded the scope of Congressional powers. Id. at 1098-1105.
(^1125) Id. at 1105.
(^1126) I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc., 307 F. Supp. 2d 521
(S.D.N.Y. 2004).
(^1127) Id. at 523.
(^1128) Id. at 532-33.