none, for the proposition that fair use includes the making of a backup copy.^1154 Accordingly,
the court preliminarily enjoined Sima from selling its devices and any other products that
circumvented Macrovision’s copyright protection technologies in violation of the DMCA.^1155
(xvii) Nordstrom Consulting, Inc. v. M&S Technologies,
Inc.
In Nordstrom Consulting, Inc. v. M&S Technologies, Inc.,^1156 Nordstrom, acting as a
consultant, developed software for a visual eye chart to be distributed as part of M&S’s visual
acuity systems. Nordstrom retained ownership of the copyrights in the software and, after a
falling out with M&S, assigned the copyrights to a separate corporation. After leaving M&S, the
plaintiffs alleged that M&S violated the DMCA by circumventing the password protection on a
computer used by Nordstrom in order to gain access to the software.^1157 The court rejected this
claim. Citing the Chamberlin v. Skylink case, the court noted that there must be a showing that
the access resulting from the circumvention led to infringement, or the facilitation of
infringement, of a copyrighted work, and the plaintiffs had failed to make such a showing. The
court noted it was undisputed that the defendant had accessed the software in order to repair or
replace the software of a client of M&S and a valid licensee of the software, so the
circumvention of the password did not result in an infringement or the facilitation of
infringement.^1158
M&S, in turn, alleged that Nordstrom had violated the DMCA by circumventing the
digital security of M&S’s computer network. M&S’s network was divided into two parts, one
dealing with visual acuity systems and one with hotel/hospitality businesses. M&S asserted that,
while Nordstrom had a password to access the acuity side of the system, he did not have a
password to access the hotel side, yet Nordstrom claimed to have accessed the hotel side. The
court denied summary judgment on M&S’s claim because of factual disputes. Nordstrom
asserted that he did not access the hotel side of the system and that any materials on the hotel
side were not registered copyrights. By contrast, M&S had offered evidence that Nordstrom
accessed the hotel side of the system, and alleged that the hotel side contained copyrighted
works.^1159
(xviii) R.C. Olmstead v. CU InterfaceThis case agreed with the I.M.S. case and held that access to a computer through the
unauthorized use of a valid username and password does not constitute an unlawful
(^1154) Id. at 7-8.
(^1155) Id. at 11-12.
(^1156) 2008 U.S. Dist. LEXIS 17259 (N.D. Ill. Mar. 4, 2008).
(^1157) Id. at 3-8.
(^1158) Id. at 23-24/
(^1159) Id. at *30-31.