The Software IP Report

How Far Do the DMCA’s Anti-circumvention Provisions Go?

By Charles Bieneman

Categories: Copyright, The Software IP Report

Taking a practical “I-know-it-when-I see-it” approach, a Nevada court considered the applicability of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 1201(a)(2), and other statutes, to mechanisms that allowed users to receive proprietary satellite programming for free.  The court entered a preliminary injunction, and authorized impoundment of devices and codes used to access the proprietary satellite programming.  However, the court declined to authorize impoundment of other products, and Defendants’ websites, that appeared to be used for legitimate sales.  Dish Network v. DiMarco, No. 2:11-cv-01962 (D. Nev. March 13, 2012).

The device in question was a receiver that could retrieve an encryption key from an Internet site that could then be used to decrypt, and avoid paying for, a satellite signal.  However, the receiver allegedly could be used for legitimate purposes; it had no built-in means of reaching the Internet, but required an adapter for this purpose.  Moreover, Defendants had stopped selling the codes used to circumvent the Plaintiffs’ encryption.  Defendants thus argued “that they are not liable for their customers’ misuse of their products, which have legitimate uses.”

The court concluded that “Plaintiffs are likely to succeed on their DMCA claims that Defendants’ trafficking in the [adapters] and . . . codes violate the statute.”  Therefore, impounding the adapters and codes was appropriate.  However, as stated above, the court declined to impound Defendants’ website, or freeze their assets, because it appeared that their sales of receivers could be a legitimate business.  The court entered a preliminary injunction to prevent Plaintiffs from suffering irreparable harm in the form of lost profits, and because of the public interest in preventing piracy.