viewed by a recipient as sent by the creator. The primary purpose of the forms feature was to
allow recipients to complete electronic forms they receive and electronically return the
information inputted on the form to the creator. Similarly, the commercial purpose of the free
text annotation feature was to allow recipients to insert comments into the PDF that could be
viewed by the creator when electronically returned. Nor was Acrobat 5.0 marketed for the
primary purpose of circumventing the embedding bits – Adobe had made no mention of
embedding bits, circumvention of embedding bits, or the Any Font Feature in any of its
marketing materials for Acrobat 5.0.^1143
With respect to the plaintiffs’ Section 1201(b)(1) claim, Adobe argued, and the court
agreed, that the embedding bits did not constitute a technological measure that prevented,
restricted, or otherwise limited the exercise of a right of copyright. The plaintiffs had already
authorized the copy and distribution of their TrueType fonts for embedding in PDF documents
for “Print and Preview” purposes. Acrobat 5.0 did not make an additional copy or distribution of
a font to embed the font in free text annotations or form fields, and the plaintiffs’ copyright did
not give them the right to control subsequent use of lawfully made copies of the fonts.^1144
In addition, for the same reasons noted in connection with the plaintiffs’ Section
1201(a)(2) claim, the court ruled that Acrobat 5.0 as a whole and the parts thereof were not
primarily designed or promoted for font embedding purposes and had many other commercially
significant purposes other than circumventing the embedding bits associates with the plaintiffs’
TrueType fonts. Accordingly, the court granted Adobe’s motion for summary judgment with
respect to the plaintiffs’ anti-circumvention claims.^1145
(xv) Egilman v. Keller & HeckmanThis case agreed with the I.M.S. case and held that access to a computer through the
unauthorized use of a valid password does not constitute an unlawful circumvention.^1146 The
plaintiff Egilman was a medical doctor and testifying expert witness in a case in which the court
had issued an order prohibiting anyone involved in the litigation from publishing any statements
on Internet websites over which they had control concerning the litigation. Egilman was
sanctioned for violating the order by publishing certain inflammatory statements on his website.
Egilman claimed that one of the defendant’s law firms had obtained the user name and password
to his website without authorization and disclosed that information to another defendant’s law
firm, which then used the user name and password to gain access to his website, from which the
firm obtained information showing that Egilman had violated the court order. Egilman asserted
a claim under the anti-circumvention provisions against the law firm.^1147
(^1143) Id. at 1032-33.
(^1144) Id. at 1038-40.
(^1145) Id. at 1040.
(^1146) Egilman v. Keller & Heckman, LLP, 401 F. Supp. 2d 105 (D.D.C. 2005).
(^1147) Id. at 107-09.