“Chamberlain’s proposed construction would allow any manufacturer of any product to add a
single copyrighted sentence or software fragment to its product, wrap the copyrighted material in
a trivial ‘encryption’ scheme, and thereby gain the right to restrict consumers’ rights to use its
products in conjunction with competing products. In other words, Chamberlain’s construction of
the DMCA would allow virtually any company to attempt to leverage its sales into aftermarket
monopolies – a practice that both the antitrust laws and the doctrine of copyright misuse
normally prohibit.”^1249
The court noted that such a broad reading would also contradict other statutory provisions
of the DMCA. In particular, Section 1201(c)(1) provides that nothing in Section 1201 shall
affect rights, remedies, limitations, or defenses to copyright infringement, including fair use.
The court noted that a reading of Section 1201 that prohibited access without regard to the rest of
the copyright statute would clearly affect rights and limitations, if not remedies and defenses,^1250
and might also be tantamount to “ignoring the explicit immunization of interoperability from
anticircumvention liability under § 1201(f).”^1251
The court’s statements might imply that circumvention for fair uses is privileged. Indeed,
the court stated, “Chamberlain’s proposed construction would allow copyright owners to prohibit
exclusively fair uses even in the absence of any feared foul use. It would therefore allow any
copyright owner, through a combination of contractual terms and technological measures, to
repeal the fair use doctrine with respect to an individual copyrighted work – or even selected
copies of that copyrighted work. Again, this implication contradicts § 1201(c)(1) directly.”^1252
Despite these pregnant statements, however, the court stated in a footnote, “We leave open the
question as to when § 107 might serve as an affirmative defense to a prima facie violation of §
- For the moment we note only that though the traditional fair use doctrine of § 107 remains
unchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is not
infringement.”^1253
Turning to Chamberlain’s specific claims under Section 1201(a)(2), the court
summarized the requirements for liability as follows:
A plaintiff alleging a violation of § 1201(a)(2) must prove: (1) ownership of a
valid copyright on a work, (2) effectively controlled by a technological measure,
which has been circumvented, (3) that third parties can now access (4) without
authorization, in a manner that (5) infringes or facilitates infringing a right
protected by the Copyright Act, because of a product that (6) the defendant either(^1249) Id. at 1201 (citations omitted).
(^1250) Id. at 1200.
(^1251) Id. Although amicus Computer and Communications Industry Association urged the court to consider the
import of Section 1201(f) on the case, the court did not reach the issue since it held there had been no anti-
circumvention violation by the defendant in the first place under its reading of the scope of the DMCA. Id. at
1191 n.8.
(^1252) Id. at 1202.
(^1253) Id. at 1200 n.14.