**United States Court of Appeals for the Federal Circuit**

04-1118

THE CHAMBERLAIN GROUP, INC.,

Plaintiff-Appellant,

v\.

SKYLINK TECHNOLOGIES, INC.,

Defendant-Appellee.

[Karl R. Fink]{.underline}, Fitch, Even, Tabin & Flannery, of Chicago,
Illinois, argued for plaintiff-appellant. With him on the brief were
[John F. Flannery]{.underline}, [Rudy I. Kratz]{.underline} and [Michael
G. Vranicar]{.underline}.

[Richard de Bodo]{.underline}, Irell & Manella LLP, of Los Angeles,
California, argued for defendant-appellee. With him on the brief were
[Andra Barmash Greene]{.underline}, [David Nimmer]{.underline}, [Peter
Christensen]{.underline} and [David Djavaherian]{.underline}, of Newport
Beach, California.

[Jonathan Band]{.underline}, Morrison & Foerster, LLP, of Washington,
DC, for amicus curiae Computer & Communications Industry Association.
With him on the brief was [Matthew Schruers]{.underline}.

[Jennifer M. Urban]{.underline}, Samuelson Law, Technology and Public
Policy Clinic, University of California at Berkeley School of Law (Boalt
Hall), of Berkeley, California, for amicus curiae Consumers Union. With
her on the brief was [Jason M. Schultz]{.underline}, Electronic Frontier
Foundation, of San Francisco, California.

Appealed from: United States District Court for the Northern District of
Illinois

Judge Rebecca R. Pallmeyer

United States Court of Appeals for the Federal Circuit

04-1118

THE CHAMBERLAIN GROUP, INC.,

Plaintiff-Appellant,

v\.

SKYLINK TECHNOLOGIES, INC.,

Defendant-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: August 31, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before GAJARSA, LINN, and PROST, [Circuit Judges]{.underline}.

GAJARSA, [Circuit Judge]{.underline}.

The Chamberlain Group, Inc. ("Chamberlain") appeals the November 13,
2003 summary judgment of the United States District Court for the
Northern District of Illinois ("District Court") in favor of Skylink
Technologies, Inc. ("Skylink"), finding that Skylink is not violating
the anti-trafficking provisions of the Digital Millennium Copyright Act
("DMCA"), 17 U.S.C. § 1201 et seq., and dismissing all other claims,
including claims of patent infringement. [Chamberlain Group, Inc. v.
Skylink Techs., Inc.]{.underline}, 292 F. Supp. 2d 1040 (N.D. Ill. 2003)
("[Chamberlain II]{.underline}"). That same court, in an earlier ruling,
denied Chamberlain's motion for summary judgment on its DMCA claims.
[Chamberlain Group, Inc. v. Skylink Techs., Inc.]{.underline}, 292 F.
Supp. 2d 1023 (N.D. Ill 2003) ("[Chamberlain I]{.underline}").
Chamberlain does not appeal that denial of its summary judgment motion.

Chamberlain's claims at issue stem from its allegation that the District
Court incorrectly construed the DMCA as placing a burden upon
Chamberlain to prove that the circumvention of its technological
measures enabled [unauthorized]{.underline} access to its copyrighted
software. But Skylink's accused device enables only uses that copyright
law explicitly authorizes, and is therefore presumptively legal.
Chamberlain has neither proved nor alleged a connection between
Skylink's accused circumvention device and the protections that the
copyright laws afford Chamberlain capable of overcoming that
presumption. Chamberlain's failure to meet this burden alone compels a
legal ruling in Skylink's favor. We therefore affirm the District
Court's summary judgment in favor of Skylink.

# BACKGROUND

### The Applicable Statute

Chamberlain sued Skylink, alleging violations of the patent and
copyright laws. Chamberlain's second amended complaint, dated March 26,
2003, enumerated eight causes of action against Skylink, including the
infringement of three patents. The matter on appeal involves only
Chamberlain's allegation that Skylink is violating the DMCA,
specifically the anti-trafficking provision of § 1201(a)(2). The
District Court first denied Chamberlain's motion for summary judgment of
its DMCA claim, [Chamberlain I]{.underline}, and then granted Skylink's
motion for summary judgment on the DMCA claim. [Chamberlain
II]{.underline}. The District Court also dismissed all other counts.

The District Court's ruling, along with the appellate briefs that the
parties and amici filed with this court, raise numerous provisions of
the DMCA for our consideration. The key provisions at issue, however,
are all in § 1201(a).

> > § 1201.  Circumvention of copyright protection systems
>
> > \(a\) Violations regarding circumvention of technological measures.\
> >    (1) (A) No person shall circumvent a technological measure that
> > effectively controls access to a work protected under this title. .
> > . .
>
> >    (2) No person shall manufacture, import, offer to the public,
> > provide, or otherwise traffic in any technology, product, service,
> > device, component, or part thereof, that---
>
> >       (A) is primarily designed or produced for the purpose of
> > circumventing a technological measure that effectively controls
> > access to a work protected under this title;
>
> >       (B) has only limited commercially significant purpose or use
> > other than to circumvent a technological measure that effectively
> > controls access to a work protected under this title; or
>
> >       (C) is marketed by that person or another acting in concert
> > with that person with that person's knowledge for use in
> > circumventing a technological measure that effectively controls
> > access to a work protected under this title.
>
> >    (3) As used in this subsection---
>
> >       (A) to "circumvent a technological measure" means to
> > descramble a scrambled work, to decrypt an encrypted work, or
> > otherwise to avoid, bypass, remove, deactivate, or impair a
> > technological measure, without the authority of the copyright owner;
> > and
>
> >       (B) a technological measure "effectively controls access to a
> > work" if the measure, in the ordinary course of its operation,
> > requires the application of information, or a process or a
> > treatment, with the authority of the copyright owner, to gain access
> > to the work.
>
> >  

17 U.S.C. § 1201(a).

### The Dispute

The District Court reviewed the basic facts and the underlying
technology in its dismissal of Chamberlain's motion for summary
judgment. Though the parties emphasize different aspects of the District
Court's factual discussion, neither one questions its general accuracy.

The technology at issue involves Garage Door Openers (GDOs). A GDO
typically consists of a hand-held portable transmitter and a garage door
opening device mounted in a homeowner's garage. The opening device, in
turn, includes both a receiver with associated signal processing
software and a motor to open or close the garage door. In order to open
or close the garage door, a user must activate the transmitter, which
sends a radio frequency (RF) signal to the receiver located on the
opening device. Once the opener receives a recognized signal, the signal
processing software directs the motor to open or close the garage door.

When a homeowner purchases a GDO system, the manufacturer provides both
an opener and a transmitter. Homeowners who desire replacement or spare
transmitters can purchase them in the aftermarket. Aftermarket consumers
have long been able to purchase "universal transmitters" that they can
program to interoperate with their GDO system regardless of make or
model. Skylink and Chamberlain are the only significant distributors of
universal GDO transmitters.[^1] Chamberlain places no explicit
restrictions on the types of transmitter that the homeowner may use with
its system at the time of purchase. Chamberlain's customers therefore
assume that they enjoy all of the rights associated with the use of
their GDOs and any software embedded therein that the copyright laws and
other laws of commerce provide.

This dispute involves Chamberlain's Security+ line of GDOs and Skylink's
Model 39 universal transmitter. Chamberlain's Security+ GDOs incorporate
a copyrighted "rolling code" computer program that constantly changes
the transmitter signal needed to open the garage door. Skylink's Model
39 transmitter, which does not incorporate rolling code, nevertheless
allows users to operate Security+ openers. Chamberlain alleges that
Skylink's transmitter renders the Security+ insecure by allowing
unauthorized users to circumvent the security inherent in rolling codes.
Of greater legal significance, however, Chamberlain contends that
because of this property of the Model 39, Skylink is in violation of the
anti-trafficking clause of the DMCA's anticircumvention provisions,
specifically § 1201(a)(2).

The code in a standard (i.e., non-rolling code) GDO transmitter is
unique but fixed. Thus, according to Chamberlain, the typical GDO is
vulnerable to attack by burglars who can open the garage door using a
"code grabber." According to Chamberlain, code grabbers allow burglars
in close proximity to a homeowner operating her garage door to record
the signal sent from the transmitter to the opener, and to return later,
replay the recorded signal, and open the garage door. Chamberlain
concedes, however, that code grabbers are more theoretical than
practical burgling devices; none of its witnesses had either firsthand
knowledge of a single code grabbing problem or familiarity with data
demonstrating the existence of a problem. Nevertheless, Chamberlain
claims to have developed its rolling code system specifically to prevent
code grabbing.[^2]

The essence of the rolling code system is that the transmitted signals
are broken into fixed and variable (or "rolling") components. The entire
transmitted signal is a bit string. The fixed component serves to
identify the transmitter. The rolling component cycles through a lengthy
cycle of bit strings only some of which are capable of opening the door
at any given time, ostensibly so that a burglar replaying a grabbed code
is unlikely to send a valid signal---and therefore unlikely to open the
garage door.

A user wishing to set up a new transmitter for use with her Security+
GDO must switch the opener to "program mode" and send a signal from the
transmitter to the opener. The opener stores both the fixed and rolling
components of the transmitted signal. When the user switches the opener
back to "operate mode," the system is set and the user may operate the
opener with the newly programmed transmitter. In Chamberlain's
transmitter, a computer program increases the rolling code by a factor
of three each time the user activates the transmitter. When the
transmitted signal reaches the receiver, a program in the opener checks
to see whether the rolling code received was identical to one of the
most recently received 1,024 rolling codes (the "rear window"). If so,
it will not activate the motor. If, on the other hand, the rolling code
received is among the next 4,096 binary signals (the "forward window"),
the receiver will activate the motor.

Not all recognized binary rolling signals are in either the forward or
rear windows. If the transmitter sends a [single]{.underline} signal
outside of either window, the receiver will ignore it. If, however, the
transmitter sends [two]{.underline} signals outside either window in
rapid succession, the opener will again access its programming, this
time to determine whether the two signals together comprise a
"resynchronization" sequence. If the signals differ by three, the
receiver will reset the windows and activate the motor. According to
Chamberlain, resynchronization accommodates the possibility that
homeowners using the same transmitter for multiple residences may
transmit so many signals while out of range of the opener that they
exhaust the entire forward window.

Skylink began marketing and selling universal transmitters in 1992.
Skylink designed its Model 39, launched in August 2002, to interoperate
with common GDOs, including both rolling code and non-rolling code
GDOs.[^3] Although Chamberlain concedes that the Model 39 transmitter is
capable of operating many different GDOs, it nevertheless asserts that
Skylink markets the Model 39 transmitter for use in circumventing its
copyrighted rolling code computer program. Chamberlain supports this
allegation by pointing to the Model 39's setting that operates
[only]{.underline} Chamberlain's rolling code GDOs.

Skylink's Model 39 [does not]{.underline} use rolling code technology.
Like Chamberlain's products, however, the Model 39's binary signal
contains two components. The first corresponds to the Chamberlain's
fixed component identifying the transmitter, and the second simulates
the effect of the Chamberlain's rolling code. Like the Chamberlain fixed
component, the primary role of the Model 39's identifying component is
in programming; a homeowner wishing to use a Model 39 in conjunction
with a Chamberlain GDO must program the opener to recognize his newly
purchased transmitter. When the homeowner actually uses the transmitter,
it broadcasts [three]{.underline} fixed codes in rapid succession. The
first binary signal combines the identifying component with an arbitrary
binary sequence. The second binary signal subtracts 1800 from the first
signal. The third signal adds three to the second signal. The
combination of these three codes transmitted with every press of the
Model 39 transmitter button will either cause the Chamberlain GDO to
operate in response to the first fixed code or cause the GDO to
resynchronize and operate in response to the second and third fixed
codes. Chamberlain characterizes this procedure as a circumvention of an
important security measure; a code grabber that recorded the Model 39's
three codes could later play them back and activate a Chamberlain
rolling code GDO without authorization.

These facts frame the dispute now before us on appeal. Though only
Chamberlain's DMCA claim is before us, and though the parties dispute
whether or not Skylink developed the Model 39 independent of
Chamberlain's copyrighted products,[^4] it is nevertheless noteworthy
that Chamberlain [has not]{.underline} alleged either that Skylink
infringed its copyright or that Skylink is liable for contributory
copyright infringement. What Chamberlain [has]{.underline} alleged is
that because its opener and transmitter both incorporate computer
programs "protected by copyright" and because rolling codes are a
"technological measure" that "controls access" to those programs,
Skylink is prima facie liable for violating § 1201(a)(2). In the
District Court's words, "Chamberlain claims that the rolling code
computer program has a protective measure that protects itself. Thus,
only one computer program is at work here, but it has two functions: (1)
to verify the rolling code; and (2) once the rolling code is verified,
to activate the GDO motor, by sending instructions to a microprocessor
in the GDO." [Chamberlain I]{.underline}, 292 F. Supp. 2d at 1028.

### The Summary Judgment Motions

The District Court first considered Chamberlain's motion for summary
judgment on its DMCA claim. [Chamberlain I]{.underline}. Chamberlain
sued Skylink under 17 U.S.C. § 1201(a)(2), a statutory provision that
neither the Seventh Circuit nor any previous District Court in the
Seventh Circuit had ever considered. To date, in fact, only the Second
Circuit has construed § 1201(a)(2), and that construction focused on
First Amendment issues rather than on an application of the statute to
case-specific facts. [See]{.underline} [Universal City Studios v.
Corley]{.underline}, 273 F.3d 429 (2d Cir. 2001)
("[Corley]{.underline}"). The District Court therefore correctly viewed
this case as a matter of first impression, and provided detailed
analyses of Chamberlain's various arguments and Skylink's proffered
defenses.

At the end of this review, the District Court denied Chamberlain's
motion for summary judgment. Chamberlain does not appeal this denial.
The District Court, however, did refer back to its discussions numerous
times in its consideration and grant of Skylink's motion for summary
judgment, the subject of the current appeal. In fact, the District
Court's discussion of Skylink's motion began by "assum\[ing\] the
reader's familiarity with \[its\] earlier decision." [Chamberlain
II]{.underline}, 292 F. Supp. 2d at 1042. Understanding the District
Court's denial of Chamberlain's summary judgment motion is therefore
critical to understanding its grant of Skylink's summary judgment
motion.

Chamberlain's argument, submitted in both summary judgment motions,
rests on its interpretation of the statute's "plain language."
Chamberlain contends first, that Skylink "primarily designed or produced
\[the Model 39\] for the purpose of circumventing \[Chamberlain's
rolling code\] technological measure that effectively controls access to
\[Chamberlain's copyrighted computer programs\]," contravening §
1201(a)(2)(A); second, that the Model 39 "has only limited commercially
significant purpose or use other than to circumvent \[Chamberlain's
rolling code\] technological measure that effectively controls access to
\[Chamberlain's copyrighted computer programs\]," contravening §
1201(a)(2)(B); and third, that Skylink marketed the Model 39 "for use in
circumventing \[Chamberlain's rolling code\] technological measure that
effectively controls access to \[Chamberlain's copyrighted computer
programs\]," contravening § 1201(a)(2)(C). [Chamberlain I]{.underline},
292 F. Supp. 2d at 1035.

Skylink submitted several defenses, arguing that: (1) the Model 39
transmitter serves a variety of functions that are unrelated to
circumvention; (2) Chamberlain has failed to demonstrate that its GDOs
contain a computer program protected by copyright; (3) consumers use the
Model 39 transmitter to activate the Security+ GDOs with Chamberlain's
consent; (4) Skylink has not violated the DMCA because it falls within a
safe harbor provision per § 1201(f);[^5] and (5) Chamberlain's rolling
code computer program does not protect a copyrighted computer program,
but instead protects an uncopyrightable process. [Id.]{.underline} at
1035-36. Though the District Court commented on all of these arguments,
it based its rulings entirely on Skylink's third argument concerning
authorization and consent.

Chamberlain submitted two arguments in response to Skylink's assertion
that Chamberlain authorized its customers to use the Model 39. First,
Chamberlain argued that Skylink bore the burden of proving that its
behavior was authorized, and that Skylink's argument was therefore, at
best, an affirmative defense rather than a defect in its own pleadings.
[Chamberlain II]{.underline}, 292 F. Supp. 2d at 1044. Second,
Chamberlain noted that it never gave consumers [explicit]{.underline}
authorization to program competing universal transmitters into its
rolling code openers, at least in part because it never anticipated that
any competitor would crack its code. Skylink did not dispute this point,
but asserted simply that in the absence of an explicit restriction,
consumers must be free to infer that they have purchased the full range
of rights that normally accompany consumer products---including those
containing copyrighted embedded software.

In assessing the authorization issue, the District Court noted that
according to the statute's internal definitions, "circumvent a
technological measure" means to "descramble a scrambled work, to decrypt
an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or
impair a technological measure, [without the authority of the copyright
owner]{.underline}." [Id.]{.underline} at 1043 (citing 17 U.S.C. §
1201(a)(3)(A)) (emphasis added by the District Court).

According to undisputed facts, a homeowner who purchases a Chamberlain
GDO owns it and has a right to use it to access his or her own garage.
At the time of sale, Chamberlain does not place any explicit terms or
condition on use to limit the ways that a purchaser may use its
products. A homeowner who wishes to use a Model 39 must first program it
into the GDO. Skylink characterizes this action as the homeowner's
authorization of the Model 39 to interoperate with the GDO. In other
words, according to Skylink, Chamberlain GDO consumers who purchase a
Skylink transmitter have Chamberlain's implicit permission to purchase
and to use any brand of transmitter that will open their GDO. The
District Court agreed that Chamberlain's unconditioned sale implied
authorization. [Id.]{.underline}

Chamberlain also argued that its web page and warranty implied
restrictions on the use of competing transmitters. The District Court,
however, refused to read an implicit restriction from the mere absence
of competing products discussed on Chamberlain's web page, particularly
given the longstanding industry practice of marketing universal
transmitters. The District Court rejected the alleged implications of
Chamberlain's warranties even more strongly, noting that consumers are
always free to forego the benefits of a product's warranty and to use
consumer products in any way that they choose. The District Court
similarly rejected Chamberlain's reiteration of the arguments that had
proved unpersuasive in its own summary judgment motion to defend itself
against Skylink's summary judgment motion.

The District Court further noted that under Chamberlain's proposed
construction of the DMCA, not only would Skylink be in violation of §
1201(a)(2) (prohibiting trafficking in circumvention devices), but
Chamberlain's own customers who used a Model 39 would be in violation of
§ 1201(a)(1) (prohibiting circumvention). The District Court declined to
adopt a construction with such dire implications. [See]{.underline}
[Chamberlain I]{.underline}, 292 F. Supp. 2d at 1039-40.

In short, the District Court concluded that because Chamberlain never
restricted its customers' use of competing transmitters with its
Security+ line, those customers had implicit authorization to use
Skylink's Model 39. Because of that implicit authorization, Chamberlain
could not possibly meet its burden of proving that Skylink trafficked in
a device designed to circumvent a technological measure to gain
unauthorized access to Chamberlain's copyrighted computer programs. The
District Court therefore granted Skylink's motion for summary judgment
on Chamberlain's DMCA claim. Chamberlain timely appealed only the
District Court's final judgment in favor of Skylink on Chamberlain's
DMCA claim, not the District Court's denial of its own summary judgment
motion.

# DISCUSSION

### Jurisdiction

Though we have jurisdiction to hear this appeal under 28 U.S.C. §
1295(a)(1), that finding rests upon a detailed jurisdictional inquiry.
Chamberlain's initial complaint described "an action for patent
infringement arising under the Patent Laws of the United States, 35
U.S.C. §§ 271 et seq. and for copyright infringement arising under the
Copyright Act, 17 U.S.C. § 1201." The complaint stated four counts;
three involved infringement of Chamberlain patents. Subsequent
amendments to the complaint added four more non-patent claims. There is
therefore little doubt that, both as filed and as amended, the District
Court's jurisdiction "arose under" the patent laws, at least in part.

Chamberlain argues, with some justification, that this characterization
of its complaint alone is enough to confer appellate jurisdiction on
this court. According to Chamberlain, the Supreme Court's emphasis of
the well-pleaded complaint rule in determining our jurisdiction requires
us to inquire [only]{.underline} whether the District Court's
jurisdiction "arose under" the patent laws, at least in part.
[See]{.underline} [Holmes Group v. Vornado Air Circulation
Sys.]{.underline}, 535 U.S. 826, 829 (2002). Skylink does not dispute
this point. Nevertheless, "\[e\]very federal appellate court has a
special obligation to satisfy itself . . . of its own jurisdiction . . .
even though the parties are prepared to concede it." [Bender v.
Williamsport Area Sch. Dist.]{.underline}, 475 U.S. 534, 541 (1986)
(citations omitted). Though both our precedent and the Supreme Court's
dicta concerning cases, such as this one, where all patent issues were
dismissed and only non-patent issues are on appeal, support our
jurisdiction, the determination is not as clear cut as Chamberlain
contends---in part because of the unusual language that the District
Court used in dismissing the claims other than Count III, the DMCA claim
that is the subject of this appeal.

The District Court first dismissed one of Chamberlain's patent claims,
Count II, "without prejudice to Plaintiff's reasserting its '703 patent
claims if the Federal Circuit reverses Judge Conlon's decision in
[Chamberlain Group, Inc. v. Interlogix, Inc.]{.underline}, No. 01
C6157." Chamberlain and Interlogix settled their case while it was on
appeal. This court then remanded the matter for "the purpose of allowing
the District Court to consider the parties' motion to vacate its
judgment." [Chamberlain Group, Inc. v. Interlogix, Inc.]{.underline}, 75
Fed. Appx. 786 (Fed. Cir. 2003).[^6] Though the [Interlogix]{.underline}
trial court subsequently denied that motion, [Chamberlain Group, Inc. v.
Interlogix, Inc.]{.underline}, No. 01-C6157, 2004 U.S. Dist. LEXIS 9851
(N.D. Ill., May 27, 2004), that denial in no way disturbed the
settlement. As a result, there is no longer any set of circumstances
under which this court could "reverse Judge Conlon's decision."
Chamberlain can no longer reassert Count II in any forum. The District
Court's dismissal of Count II, though styled as "without prejudice
subject to a condition subsequent," has ripened into a dismissal with
prejudice, and therefore serves as an adjudication on the merits of
Count II.

The District Court's effective adjudication of Count II confirmed
Federal Circuit jurisdiction to hear all appeals from the final judgment
in this matter, 28 U.S.C. § 1295(a)(1), by assuring that the District
Court's own jurisdiction arose in part under the patent laws.
[See]{.underline} [Holmes]{.underline}, 535 U.S. at 826. At the time
that the District Court dismissed Count II, however, numerous other
claims and counterclaims remained unresolved. Shortly thereafter,
though, and subject to stipulation by the parties, the District Court
dismissed all remaining claims other than Count III, the DMCA claim:

> Counts IV through VII of the Second Amended Complaint and Counts I
> through VII of the Amended Answer and Counterclaim are dismissed with
> prejudice pursuant to Fed. R. Civ. P. 41(a). Counts I and VIII of the
> Second Amended Complaint are dismissed without prejudice pursuant to
> Fed.R.Civ.P. 41(a). The dismissal of the patent claims is without
> prejudice solely for the purpose of permitting the maintenance of the
>
> patent claims in the ITC investigation and nowhere else as per
> agreement of the parties.[^7]

Counts I, II, and VIII were the only patent claims in the Second Amended
Complaint. This broad dismissal rendered the District Court's summary
judgment for Skylink on the DMCA claim a final judgment from which
Chamberlain could appeal.

Though we have never before had to consider our jurisdiction over
matters in which a trial court dismissed all patent claims using
precisely the language that this District Court did in dismissing Claims
I, II, and VIII, our precedent is clear. Federal Circuit jurisdiction
depends on whether the plaintiff's complaint as amended raises patent
law issues. [Gronholz v. Sears, Roebuck & Co.]{.underline}, 836 F.2d
515, 519 (Fed. Cir. 1987); [see also]{.underline} [Holmes]{.underline},
535 U.S. at 829 n.1; [Christianson v. Colt Indus. Operating
Corp.]{.underline}, 486 U.S. 800, 822-24 (1988) (Stevens, J.,
concurring); [Holmes]{.underline}, 535 U.S. at 835 (Stevens, J.,
concurring). Where, as here, all of the patent claims in the amended
complaint were dismissed prior to the non-patent ruling on appeal, the
dispositive question is whether the dismissal was with or without
prejudice. [Nilssen v. Motorola, Inc.]{.underline}, 203 F.3d 782, 785
(Fed. Cir. 2000).

Dismissals [without prejudice]{.underline} are de facto amendments to
the complaint. [Gronholz]{.underline}, 836 F.2d at 519. For the purposes
of determining Federal Circuit jurisdiction, we do not differentiate
between actual and constructive amendments; both divest us of
jurisdiction if they eliminate all issues of patent law.
[See]{.underline} [id.]{.underline} Dismissals [with
prejudice]{.underline} are adjudications on the merits, and not
constructive amendments to the complaint. [Zenith Elecs. Corp. v. Exzec,
Inc.]{.underline}, 182 F.3d 1340, 1346 (Fed. Cir. 1999). In all such
cases, we retain jurisdiction to hear all appeals on all issues.
[See]{.underline} [id.]{.underline}

Taken together, whenever the complaint included a patent claim and the
trial court's rulings altered the legal status of the parties with
respect to that patent claim, we retain appellate jurisdiction over all
pendent claims in the complaint. [See]{.underline} [Atari, Inc. v. JS &
A Group, Inc.]{.underline}, 747 F.2d 1422, 1432 (Fed. Cir. 1984) (en
banc) overruled on other grounds by, [Nobelpharma AB v. Implant
Innovation, Inc. 141 F.3d 1059 (1998) (en banc in relevant
part)]{.underline}; [Zenith]{.underline}, 182 F.3d at 1346;
[Nilssen]{.underline}, 203 F.3d at 785. In other words, if all patent
claims raised in the amended complaint were dismissed [without
prejudice]{.underline}, the dismissal would divest us of jurisdiction;
dismissals [with prejudice]{.underline} would not.
[Nilssen]{.underline}, 203 F.3d at 785. Neither the specific rule under
which the District Court dismissed the claims nor the wording of the
dismissal alters the fundamental basis of our jurisdiction.
[Id.]{.underline} Dismissals divest this court of jurisdiction only if
"\[t\]he parties were left in the same legal position with respect to
\[all\] patent claims as if they had never been filed."
[Id.]{.underline} "\[T\]he dismissal of a claim with prejudice
operate\[s\] as an adjudication of that claim on the merits,"
[id.]{.underline}, and preserves our jurisdiction.

Our jurisdiction in the present matter therefore hinges on whether one
or more of the District Court's dismissals altered the legal positions
of Chamberlain and Skylink vis-à-vis the dismissed claim. The Supreme
Court has defined the difference between dismissals with and without
prejudice:

> The primary meaning of "dismissal without prejudice," we think, is
> dismissal without barring the defendant from returning later, to the
> same court, with the same underlying claim. That will also ordinarily
> (though not always) have the consequence of not barring the claim from
> [other]{.underline} courts, but its primary meaning relates to the
> dismissing court itself. Thus, Black's Law Dictionary (7th ed. 1999)
> defines "dismissed without prejudice" as "removed from the court's
> docket in such a way that the plaintiff may refile the same suit on
> the same claim," [id.]{.underline} at 482, and defines "dismissal
> without prejudice" as "\[a\] dismissal that  does not bar the
> plaintiff from refiling the lawsuit within the applicable limitations
> period, [ibid.]{.underline}"

[Semtek Int'l Inc. v. Lockheed Martin Corp.]{.underline}, 531 U.S. 497,
505-06 (2001). This distinction is functional, rather than semantic.
Notwithstanding the District Court's semantic characterization of its
dismissal of Claim II as "without prejudice" subject to a condition
subsequent that can no longer occur, and of Claims I and VIII as
"without prejudice" except in a single forum, Chamberlain
[is]{.underline} barred from reasserting these claims. The District
Court's dismissals clearly fail to meet the Supreme Court's definition
of "dismissal without prejudice" because they alter the legal status of
the parties vis-à-vis [all]{.underline} of Chamberlain's asserted patent
claims. Chamberlain and Skylink were [not]{.underline} "left in the same
legal position with respect to the patent claims as if they had never
been filed." [Nilssen]{.underline}, 203 F.3d at 785. We therefore have
jurisdiction to hear this appeal under 28 U.S.C. § 1295(a)(1).

### The Parties' Positions

On appeal, the parties have raised a number of issues that we must
address both as matters of statutory construction and as they relate to
the factual disposition of this case. Chamberlain argues that "Skylink
violates the prima facie requirement of anti-trafficking § 1201(a)(2)."
According to Chamberlain, "Skylink did not seriously dispute that the
operation of its transmitters bypasses Chamberlain's rolling code
security measure to gain access to Chamberlain's copyrighted GDO
receiver operating software, but instead focuses on an 'authorization'
defense." Given that "plain language" interpretation of the statute,
Chamberlain also argues that the District Court erred in assigning the
plaintiff the burden of proving that access was unauthorized rather than
placing the burden on the defendant to prove that the access was
authorized. Finally, with the burden thus shifted, Chamberlain argues
that Skylink has not met its burden, and that the District Court's grant
of summary judgment was therefore in error.

Skylink primarily urges us to adopt both the District Court's
construction and its application of its construction to the facts of
this case. In particular, Skylink urges us [not]{.underline} to place
the burden of proving authorization on defendants, arguing that it would
be tantamount to reading a new "authority" requirement into the
DMCA.[^8] To resolve this dispute, we must first construe the relevant
portions of the DMCA, and then apply the statute, properly construed, to
the specific facts at issue.

### Standard of Review

To resolve issues of substantive copyright law, this court applies the
law as interpreted by the regional circuits, in this case the Seventh
Circuit. [See]{.underline} [Atari Games Corp. v. Nintendo of Am.,
Inc.]{.underline}, 975 F.2d 832, 837 (Fed. Cir. 1992). Because this
matter came to us following a summary judgment, we must apply the
Seventh Circuit's standard of review for summary judgments. This
standard does not differ from circuit to circuit. Fed. R. Civ. P. 56;
[Anderson v. Liberty Lobby, Inc.]{.underline}, 477 U.S. 242, 247-48
(1986). Appellate courts review summary judgment motions de novo,
viewing the record and all inferences from it in the light most
favorable to the nonmoving party. [Schmidt v. Ottawa Med. Ctr.,
P.C.]{.underline}, 322 F.3d 461, 463 (7th Cir. 2003). Summary judgment
is appropriate only when there is no genuine issue as to any material
fact and where the moving party is entitled to judgment as a matter of
law. [Id.]{.underline}

Our task is essentially one of statutory construction. It is also a
matter of first impression. For us to determine whether or not Skylink
was entitled to summary judgment that its Model 39 universal transmitter
does not violate the DMCA, we must first determine precisely what §
1201(a)(2) prohibits. The Seventh Circuit has considered the DMCA only
once, in [In re Aimster Copyright Litigation]{.underline}, 334 F.3d 643,
655 (7th Cir. 2003). That case involved provisions of the DMCA other
than those at issue here. To the extent that the Seventh Circuit
provided any useful guidance to our consideration of the DMCA, it can be
captured in two simple sentences: "The DMCA is an attempt to deal with
special problems created by the so-called digital revolution. . . . The
Act does not abolish contributory infringement." [Id.]{.underline} As a
result, there is no binding precedent governing the substantive issues
in this case. The parties have provided numerous citations to persuasive
authority from other regional circuits and from District Courts,
primarily but not exclusively [Universal City Studios, Inc. v.
Reimerdes]{.underline}, 111 F. Supp. 2d 294, 319 (S.D.N.Y. 2000)
("Reimerdes"), [aff'd sub nom.]{.underline} [Universal City Studios v.
Corley]{.underline}, 273 F.3d 429 (2d Cir. 2001) ("Corley").[^9] The
parties pointed the District Court toward this case as well, and the
District Court relied in part upon the [Reimerdes]{.underline} analysis
in its own construction of the DMCA. [See]{.underline} [Chamberlain
I]{.underline}, 292 F. Supp. 2d at 1036-40; [Chamberlain
II]{.underline}, 292 F. Supp. 2d at 1045.

The general methodology guiding a court's construction of a statute is
well established, and is the same in the Seventh Circuit as it is in the
Federal Circuit. [Compare]{.underline} [Bethlehem Steel Corp. v.
Bush]{.underline}, 918 F.2d 1323, 1327 (7th Cir. 1990),
[with]{.underline} [Madison Galleries, Ltd. v. United
States]{.underline}, 870 F.2d 627, 630 (Fed. Cir. 1989). We must start
with the language of the statute. [See]{.underline} [Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found.]{.underline}, 484 U.S. 49, 56
(1987). If the statute is unambiguous, our inquiry is at an end; we must
enforce the congressional intent embodied in that plain wording.
[See]{.underline} [United States v. Clark]{.underline}, 454 U.S. 555,
560 (1982). "When a syntactical analysis of the statutory language does
not yield a satisfactory answer with respect to the intent of the
Congress, we must employ other less satisfactory means to ascertain, as
best we can, the legislative will." [Bethlehem Steel]{.underline}, 918
F.2d at 1327. In such cases, investigations of the statute's structure
and of relevant legislative history can both provide useful insights to
help us construe the statute in the way most consistent with
congressional intent. [See, e.g.]{.underline}, [Alexander v.
Sandoval]{.underline}, 532 U.S. 275 (2001); [Whitman v. Am. Trucking
Ass'ns]{.underline}, 531 U.S. 457, 490 (2001); [Boim v. Quranic Literacy
Inst.]{.underline}, 291 F.3d 1000, 1019 (7th Cir. 2002). "Policy
considerations cannot override our interpretation of the text and
structure of \[a statute\], except to the extent that they may help to
show that adherence to the text and structure would lead to a result so
bizarre that Congress could not have intended it." [Central Bank, N.A.
v. First Interstate Bank, N.A.]{.underline}, 511 U.S. 164, 188 (1994).

### The Statute and Liability under the DMCA

The essence of the DMCA's anticircumvention provisions is that §§
1201(a),(b) establish causes of action for liability. They do not
establish a new property right. The DMCA's text indicates that
circumvention is not infringement, 17 U.S.C. § 1201(c)(1) ("Nothing in
this section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title."), and the
statute's structure makes the point even clearer. This distinction
between property and liability is critical. Whereas copyrights, like
patents, are property, liability protection from unauthorized
circumvention merely creates a new cause of action under which a
defendant may be liable. The distinction between property and liability
goes straight to the issue of authorization, the issue upon which the
District Court both denied Chamberlain's and granted Skylink's motion
for summary judgment.

A plaintiff alleging copyright infringement need prove
[only]{.underline} "(1) ownership of a valid copyright, and (2) copying
of constituent elements of the work that are original." [Feist Pub.,
Inc. v. Rural Tel. Serv. Co.]{.underline}, 499 U.S. 340, 361 (1991);
[see also]{.underline} [Harris Custom Builders, Inc. v.
Hoffmeyer]{.underline}, 92 F.3d 517, 519 (7th Cir. 1996). "\[T\]he
existence of a license, exclusive or nonexclusive, creates an
affirmative defense to a claim of copyright infringement." [I.A.E., Inc.
v. Shaver]{.underline}, 74 F.3d 768, 775 (7th Cir. 1996). In other
words, under Seventh Circuit copyright law, a plaintiff only needs to
show that the defendant has used her property; the burden of proving
that the use was authorized falls squarely on the defendant.
[Id.]{.underline} The DMCA, however, [defines]{.underline} circumvention
as an activity undertaken "without the authority of the copyright
owner." 17 U.S.C. § 1201(a)(3)(A). The plain language of the statute
therefore requires a plaintiff alleging circumvention (or trafficking)
to prove that the defendant's access was unauthorized---a significant
burden where, as here, the copyright laws authorize consumers to use the
copy of Chamberlain's software embedded in the GDOs that they purchased.
The premise underlying this initial assignment of burden is that the
copyright laws authorize members of the public to access a work, but not
to copy it. The law therefore places the burden of proof on the party
attempting to establish that the circumstances of its case deviate from
these normal expectations; defendants must prove authorized copying and
plaintiffs must prove unauthorized access.

The distinction between property and liability also addresses an
important policy issue that Chamberlain puts into stark focus.[^10]
According to Chamberlain, the 1998 enactment of the DMCA "renders the
pre-DMCA history in the GDO industry irrelevant. By prohibiting the
trafficking and use of circumvention technology, the DMCA fundamentally
altered the legal landscape. . . . Any analysis of practices within the
GDO industry must now be undertaken in light of the DMCA." Chamberlain
reiterated and strengthened this assertion at oral argument, claiming
that the DMCA overrode all pre-existing consumer expectations about the
legitimate uses of products containing copyrighted embedded software.
Chamberlain contends that Congress empowered manufacturers to prohibit
consumers from using embedded software products in conjunction with
competing products when it passed § 1201(a)(1). According to
Chamberlain, [all]{.underline} such uses of products containing
copyrighted software to which a technological measure controlled access
are now per se illegal under the DMCA unless the manufacturer provided
consumers with [explicit]{.underline} authorization. Chamberlain's
interpretation of the DMCA would therefore grant manufacturers broad
exemptions from both the antitrust laws and the doctrine of copyright
misuse.

Such an exemption, however, is only plausible if the anticircumvention
provisions established a new property right capable of conflicting with
the copyright owner's other legal responsibilities---which as we have
already explained, they do not. The anticircumvention provisions convey
no additional property rights in and of themselves; they simply provide
property owners with new ways to secure their property. Like all
property owners taking legitimate steps to protect their property,
however, copyright owners relying on the anticircumvention provisions
remain bound by all other relevant bodies of law. Contrary to
Chamberlain's assertion, the DMCA emphatically [did not]{.underline}
"fundamentally alter" the legal landscape governing the reasonable
expectations of consumers or competitors; [did not]{.underline}
"fundamentally alter" the ways that courts analyze industry practices;
and [did not]{.underline} render the pre-DMCA history of the GDO
industry irrelevant.

What the DMCA did was introduce new grounds for liability in the context
of the unauthorized access of copyrighted material. The statute's plain
language requires plaintiffs to prove that those circumventing their
technological measures controlling access did so "without the authority
of the copyright owner." 17 U.S.C. § 1201(3)(A). Our inquiry ends with
that clear language. We note, however, that the statute's structure,
legislative history, and context within the Copyright Act all support
our construction. They also help to explain why Chamberlain's warranty
conditions and website postings cannot render users of Skylink's Model
39 "unauthorized" users for the purposes of establishing trafficking
liability under the DMCA.

### Statutory Structure and Legislative History

The specific statutory provision here at issue is § 1201(a)(2) of the
DMCA. The structure of the DMCA follows logically from the textual
provisions distinguishing circumvention from infringement. The
provisions relevant to circumvention are all in a new chapter of the
Copyright Act, Chapter 12, titled "Copyright Protection and Management
System." Violators may be subject to the new civil penalties of § 1203
and the criminal penalties of § 1204, but they are not necessarily
liable for copyright infringement.

The Second Circuit, as a precursor to its constitutional analysis,
summarized the statute's history and structure:

> The DMCA was enacted in 1998 to implement the World Intellectual
> Property Organization Copyright Treaty ("WIPO Treaty"), which requires
> contracting parties to "provide adequate legal protection and
> effective legal remedies against the circumvention of effective
> technological measures that are used by authors in connection with the
> exercise of their rights under this Treaty or the Berne Convention and
> that restrict acts, in respect of their works, which are not
> authorized by the authors concerned or permitted by law."[^11] Even
> before the treaty, Congress had been devoting attention to the
> problems faced by copyright enforcement in the digital age. Hearings
> on the topic have spanned several years. . . . This legislative effort
> resulted in the DMCA.
>
> The Act contains three provisions targeted at the circumvention of
> technological protections. The first is subsection 1201(a)(1)(A), the
> anti- circumvention provision. This provision prohibits a person from
> "circumvent\[ing\] a technological measure that effectively controls
> access to a work protected under \[Title 17, governing copyright\]." .
> . .
>
> The second and third provisions are subsections 1201(a)(2) and
> 1201(b)(1), the "anti-trafficking provisions." . . . Subsection
> 1201(a)(1) differs from both of these anti-trafficking subsections in
> that it targets the use of a circumvention technology, not the
> trafficking in such a technology.
>
> The DMCA contains exceptions, . . . \[[id.]{.underline} §§
> 1201(d),(f),(g)\] . . . creates civil remedies, [id.]{.underline} §
> 1203, and criminal sanctions, [id.]{.underline} § 1204. It
> specifically authorizes a court to "grant temporary and permanent
> injunctions on such terms as it deems reasonable to prevent or
> restrain a violation." [Id.]{.underline} § 1203(b)(1).

[Corley]{.underline}, 273 F.3d at 440-41 (footnote appears as text in
original; internal footnotes from original omitted).

Here, as in [Corley]{.underline}, the primary statutory clause at issue
is § 1201(a)(2) of the DMCA, though other subsections of § 1201 are also
implicated. Unlike the Second Circuit in [Corley]{.underline}, which
provided only enough of the statutory construction to address
constitutional challenges, however, we must construe the full boundaries
of anticircumvention and anti-trafficking liability under the DMCA. We
must determine the Congressional intent embodied in the statute's
language, and then enforce the correctly construed statute to the facts
at hand. [See]{.underline} [United States v. Clark]{.underline}, 454
U.S. 555, 560 (1982).

Because the DMCA is a complex statute creating several new causes of
action, each subject to numerous exceptions, we must also ensure that
our construction makes sense given the statute's entirety. We must
therefore consider briefly the relationship among the liabilities
created under §§ 1201(a)(1), (a)(2), and (b). Statutory structure and
legislative history both make it clear that § 1201 applies only to
circumventions reasonably related to protected rights. Defendants who
traffic in devices that circumvent access controls in ways that
facilitate infringement may be subject to liability under § 1201(a)(2).
Defendants who use such devices may be subject to liability under §
1201(a)(1) whether they infringe or not. Because all defendants who
traffic in devices that circumvent rights controls necessarily
facilitate infringement, they may be subject to liability under §
1201(b). Defendants who use such devices may be subject to liability for
copyright infringement. And finally, defendants whose circumvention
devices do not facilitate infringement are not subject to § 1201
liability.

The key to understanding this relationship lies in § 1201(b),[^12] which
prohibits trafficking in devices that circumvent technological measures
tailored narrowly to protect an individual right of the copyright owner
while nevertheless allowing access to the protected work. Though §
1201(b) parallels the anti-trafficking ban of § 1201(a)(2), there is no
narrowly tailored ban on direct circumvention to parallel § 1201(a)(1).
This omission was intentional.

> The prohibition in 1201(a)(1) \[was\] necessary because prior to \[the
> DMCA\], the conduct of circumvention was never before made unlawful.
> The device limitation in 1201(a)(2) enforces this new prohibition in
> conduct. The copyright law has long forbidden copyright infringements,
> so no new prohibition was necessary. The device limitation in 1201(b)
> enforces the longstanding prohibitions on infringements.

S. Rep. No. 105-90 at 12 (1998).

Prior to the DMCA, a copyright owner would have had no cause of action
against anyone who circumvented any sort of technological control, but
did not infringe. The DMCA rebalanced these interests to favor the
copyright owner; the DMCA created circumvention liability for "digital
trespass" under § 1201(a)(1). It also created trafficking liability
under § 1201(a)(2) for facilitating such circumvention and under §
1201(b) for facilitating infringement (both subject to the numerous
limitations and exceptions outlined throughout the DMCA).[^13]

The importance of "rebalancing" interests in light of recent
technological advances is manifest in the DMCA's legislative history.
Though the Supreme Court has recognized that interim industrial
developments may erode the "persuasive effect of legislative history,"
[New York v. FERC]{.underline}, 535 U.S. 1, 23 (2002), Congressional
intent evident in relatively recent legislation like the DMCA may
provide useful context in interpreting the statutory language. Though
"we do not resort to legislative history to cloud a statutory text that
is clear," [Ratzlaf v. United States]{.underline}, 510 U.S. 135, 147-48
(1994), we nevertheless recognize that "words are inexact tools at best,
and hence it is essential that we place the words of a statute in their
proper context by resort to the legislative history." [Tidewater Oil Co.
v. United States]{.underline}, 409 U.S. 151, 157 (1972).

The most significant and consistent theme running through the entire
legislative history of the anticircumvention and anti-trafficking
provisions of the DMCA, §§ 1201(a)(1),(2), is that Congress attempted to
balance competing interests, and "endeavored to specify, with as much
clarity as possible, how the right against anti-circumvention would be
qualified to maintain balance between the interests of content creators
and information users." H.R. Rep. No. 105-551, at 26 (1998). The Report
of the House Commerce Committee concluded that § 1201 "fully respects
and extends into the digital environment the bedrock principle of
'balance' in American intellectual property law for the benefit of both
copyright owners and users." [Id.]{.underline}

The crux of the present dispute over statutory construction therefore
stems from a dispute over the precise balance between copyright owners
and users that Congress captured in the DMCA's language.

> Defendants argue . . . that the DMCA should not be construed to reach
> their conduct \[or product\] . . . because the DMCA, so applied, could
> prevent those who wish to gain access to technologically protected
> copyrighted works in order to make . . . non-infringing use of them
> from doing so. . . . Technological access control measures have the
> capacity to prevent fair uses of copyrighted works as well as foul.
> Hence, there is a potential tension between the use of such access
> control measures and fair use, \[as well as the much broader range of
> explicitly noninfringing use\]. . . . As the DMCA made its way through
> the legislative process, Congress was preoccupied with precisely this
> issue. Proponents of strong restrictions on circumvention of access
> control measures argued that they were essential if copyright holders
> were to make their works available in digital form because digital
> works otherwise could be pirated too easily. Opponents contended that
> strong anticircumvention measures would extend the copyright monopoly
> inappropriately and prevent many fair uses of copyrighted material.
> Congress struck a balance. . . .

[Reimerdes]{.underline}, 111 F. Supp. 2d at 304 (citations omitted). We
must understand that balance to resolve this dispute.

### Access and Protection

Congress crafted the new anticircumvention and anti-trafficking
provisions here at issue to help bring copyright law into the
information age. Advances in digital technology over the past few
decades have stripped copyright owners of much of the technological and
economic protection to which they had grown accustomed. Whereas
large-scale copying and distribution of copyrighted material used to be
difficult and expensive, it is now easy and inexpensive. The
[Reimerdes]{.underline} court correctly noted both the economic impact
of these advances and their consequent potential impact on innovation.
Congress therefore crafted legislation restricting some, but not all,
technological measures designed either to access a work protected by
copyright, § 1201(a), or to infringe a right of a copyright owner, §
1201(b).

Though as noted, circumvention [is not]{.underline} a new form of
infringement but rather a new violation prohibiting actions or products
that facilitate infringement, it is significant that virtually every
clause of § 1201 that mentions "access" links "access" to "protection."
The import of that linkage may be less than obvious. Perhaps the best
way to appreciate the necessity of this linkage---and the disposition of
this case---is to consider three interrelated questions inherent in the
DMCA's structure: What does § 1201(a)(2) prohibit above and beyond the
prohibitions of § 1201(b)? What is the relationship between the sorts of
"access" prohibited under § 1201(a) and the rights "protected" under the
Copyright Act? and What is the relationship between anticircumvention
liability under § 1201(a)(1) and anti-trafficking liability under §
1201(a)(2)? The relationships among the new liabilities that these three
provisions, §§ 1201(a)(1),(a)(2),(b), create circumscribe the DMCA's
scope---and therefore allow us to determine whether or not Chamberlain's
claim falls within its purview. And the key to disentangling these
relationships lies in understanding the linkage between access and
protection.

Chamberlain urges us to read the DMCA as if Congress simply created a
new protection for copyrighted works without any reference at all either
to the protections that copyright owners already possess or to the
rights that the Copyright Act grants to the public. Chamberlain has not
alleged that Skylink's Model 39 infringes its copyrights, nor has it
alleged that the Model 39 contributes to third-party infringement of its
copyrights. Chamberlain's allegation is considerably more
straightforward: The only way for the Model 39 to interoperate with a
Security+ GDO is by "accessing" copyrighted software. Skylink has
therefore committed a per se violation of the DMCA. Chamberlain urges us
to conclude that no necessary connection exists between access and
copy[rights]{.underline}. Congress could not have intended such a broad
reading of the DMCA. [Accord]{.underline} [Corley]{.underline}, 273 F.3d
at 435 (explaining that Congress passed the DMCA's anti-trafficking
provisions to help copyright owners protect their works [from
piracy]{.underline} behind a digital wall).

Chamberlain derives its strongest claimed support for its proposed
construction from the trial court's opinion in [Reimerdes]{.underline},
a case involving the same statutory provision. [See]{.underline}
[Reimerdes]{.underline}, 111 F. Supp. 2d at 304. Though Chamberlain is
correct in considering some of the [Reimerdes]{.underline} language
supportive, it is the differences between the cases, rather than their
similarities, that is most instructive in demonstrating precisely what
the DMCA permits and what it prohibits.

The facts here differ greatly from those in [Reimerdes]{.underline}.
There, a group of movie studios sought an injunction under the DMCA to
prohibit illegal copying of digital versatile discs (DVDs).
[Reimerdes]{.underline}, 111 F. Supp. 2d at 308. The plaintiffs
presented evidence that each motion picture DVD includes a content
scrambling system (CSS) that permits the film to be played, but not
copied, using DVD players that incorporate the plaintiffs' licensed
decryption technology. [Id.]{.underline} The defendant provided a link
on his website that allowed an individual to download DeCSS, a program
that allows the user to circumvent the CSS protective system and to view
[or to copy]{.underline} a motion picture from a DVD, whether or not the
user has a DVD player with the licensed technology. [Id.]{.underline}
The defendant proudly trumpeted his actions as "electronic civil
disobedience." [Id.]{.underline} at 303, 312*.* The court found that the
defendant had violated 17 U.S.C. § 1201(a)(2)(A) because DeCSS had only
one purpose: to decrypt CSS. [Id.]{.underline} at 319, 346.

Chamberlain's proposed construction of the DMCA ignores the significant
differences between defendants whose accused products enable copying and
those, like Skylink, whose accused products enable only legitimate uses
of copyrighted software. Chamberlain's repeated reliance on language
targeted at defendants trumpeting their "electronic civil disobedience,"
[id.]{.underline} at 303, 312, apparently led it to misconstrue
significant portions of the DMCA. Many of Chamberlain's assertions in
its brief to this court conflate the property right of copyright with
the liability that the anticircumvention provisions impose.

Chamberlain relies upon the DMCA's prohibition of "fair uses . . . as
well as foul," [Reimerdes]{.underline}, 111 F. Supp. 2d at 304, to argue
that the enactment of the DMCA eliminated all existing consumer
expectations about the public's rights to use purchased products because
those products might include technological measures controlling access
to a copyrighted work. But Chamberlain appears to have overlooked the
obvious. The possibility that § 1201 might prohibit some otherwise
noninfringing public uses of copyrighted material, [see,
e.g.]{.underline} [RealNetworks, Inc. v. Streambox, Inc.]{.underline},
No. 2:99CV02070, 2000 U.S. Dist. LEXIS 1889, at \*23, (W.D. Wash., Jan.
18, 2000); [Reimerdes]{.underline}, 111 F. Supp. 2d at 323, arises
simply because the Congressional decision to create liability and
consequent damages for making, using, or selling a "key" that
essentially enables a [trespass]{.underline} upon intellectual property
need not be identical in scope to the liabilities and compensable
damages for [infringing]{.underline} that property; it is, instead, a
rebalancing of interests that "attempt\[s\] to deal with special
problems created by the so-called digital revolution."
[Aimster]{.underline}, 334 F.3d at 655.

Though [Reimerdes]{.underline} is not the only case that Chamberlain
cites for support, none of its other citations are any more helpful to
its cause. In three other cases, [Lexmark International, Inc. v. Static
Control Components, Inc.]{.underline}, 253 F. Supp. 2d 943, 969 (E.D.
Ky. 2003), [Sony Computer Entertainment America, Inc. v.
Gamemasters]{.underline}, 87 F. Supp. 2d 976 (N.D. Cal. 1999), and
[RealNetworks]{.underline}, 2000 U.S. Dist. LEXIS 1889, the trial courts
did grant preliminary injunctions under the DMCA using language
supportive of Chamberlain's proposed construction. None of these cases,
however, is on point. In [Lexmark]{.underline}, 253 F. Supp. 2d at 971,
the trial court ruled that the defendant's conduct constituted copyright
infringement. In [Sony]{.underline}, 87 F. Supp. 2d 987, the plaintiff's
allegations included both trademark and copyright infringement, and the
defendant conceded that its product made "temporary modifications" to
the plaintiff's copyrighted computer program. In
[RealNetworks]{.underline}, the defendant's product allegedly disabled
RealNetworks' "copy switch," RealNetworks' technological measure
designed to let the owner of copyrighted material being streamed over
RealNetworks' media player either enable or disable copying upon
streaming. [RealNetworks]{.underline}, 2000 U.S. Dist. LEXIS 1889 at
\*1.  The court stated explicitly that the avoidance of the copy switch
appeared to have little commercial value other than circumvention and
the consequent infringement that it enabled. [Id.]{.underline} at \*21.
In short, the access alleged in all three cases was intertwined with a
protected right. None of these cases can support a construction as broad
as the one that Chamberlain urges us to adopt, even as persuasive
authority.

Furthermore, though the severance of access from protection appears
plausible taken out of context, it would also introduce a number of
irreconcilable problems in statutory construction. The seeming
plausibility arises because the statute's structure could be seen to
suggest that § 1201(b) strengthens a copyright owner's abilities to
protect its recognized [rights]{.underline}, while § 1201(a) strengthens
a copyright owner's abilities to protect [access]{.underline} to its
work without regard to the legitimacy (or illegitimacy) of the actions
that the accused access enables. Such an interpretation is consistent
with the Second Circuit's description: "\[T\]he focus of subsection
1201(a)(2) is circumvention of technologies designed to [prevent
access]{.underline} to a work, and the focus of subsection 1201(b)(1) is
circumvention of technologies designed to [permit access]{.underline} to
a work but [prevent copying]{.underline} of the work or some other act
that infringes a copyright." [Corley]{.underline}, 273 F.3d at 440-41
(emphasis in original).

It is unlikely, however, that the Second Circuit meant to imply anything
as drastic as wresting the concept of "access" from its context within
the Copyright Act, as Chamberlain would now have us do. Were § 1201(a)
to allow copyright owners to use technological measures to block
[all]{.underline} access to their copyrighted works, it would
effectively create two distinct copyright regimes. In the first regime,
the owners of a typical work protected by copyright would possess only
the rights enumerated in 17 U.S.C. § 106, subject to the additions,
exceptions, and limitations outlined throughout the rest of the
Copyright Act---notably but not solely the fair use provisions of §
107.[^14] Owners who feel that technology has put those rights at risk,
and who incorporate technological measures to protect those rights from
technological encroachment, gain the additional ability to hold
traffickers in circumvention devices liable under § 1201(b) for putting
their rights back at risk by enabling circumventors who use these
devices to infringe.

Under the second regime that Chamberlain's proposed construction
implies, the owners of a work protected by [both]{.underline} copyright
[and]{.underline} a technological measure that effectively controls
access to that work per § 1201(a) would possess [unlimited]{.underline}
rights to hold circumventors liable under § 1201(a) [merely for
accessing that work]{.underline}, even if that access enabled
[only]{.underline} rights that the Copyright Act grants to the public.
This second implied regime would be problematic for a number of reasons.
First, as the Supreme Court recently explained, "Congress' exercise of
its Copyright Clause authority must be rational." [Eldred v.
Ashcroft]{.underline}, 537 U.S. 186, 205 n.10 (2003). In determining
whether a particular aspect of the Copyright Act "is a rational exercise
of the legislative authority conferred by the Copyright Clause . . . we
defer substantially to Congress. It is Congress that has been assigned
the task of defining the scope of the limited monopoly that should be
granted to authors . . . [in order to give the public appropriate
access]{.underline} to their work product." [Id.]{.underline} at 204-05
(citation omitted) (emphasis added). Chamberlain's proposed construction
of § 1201(a) implies that in enacting the DMCA, Congress attempted to
"give the public appropriate access" to copyrighted works by allowing
copyright owners to deny all access to the public. Even under the
substantial deference due Congress, such a redefinition borders on the
irrational.

That apparent irrationality, however, is not the most significant
problem that this second regime implies. Such a regime would be hard to
reconcile with the DMCA's statutory prescription that "\[n\]othing in
this section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title." 17 U.S.C.
§ 1201(c)(1). A provision that prohibited access without regard to the
rest of the Copyright Act would clearly affect rights and limitations,
if not remedies and defenses. Justice Souter has remarked that "\[n\]o
canon of statutory construction familiar to me specifically addresses
the situation in which two simultaneously enacted provisions of the same
statute flatly contradict one another. We are, of course, bound to avoid
such a dilemma if we can, by glimpsing some uncontradicted meaning for
each provision."  [Reno v. American-Arab Anti-Discrimination
Comm.]{.underline}, 525 U.S. 471, 509 (1999) (Souter, J., dissenting).
Chamberlain's proposed construction of § 1201(a) would flatly contradict
§ 1201(c)(1)---a simultaneously enacted provision of the same statute.
We are therefore bound, if we can, to obtain an alternative construction
that leads to no such contradiction.

Chamberlain's proposed severance of "access" from "protection" in §
1201(a) creates numerous other problems. Beyond suggesting that Congress
enacted [by implication]{.underline} a new, highly protective
alternative regime for copyrighted works; contradicting other provisions
of the same statute including § 1201(c)(1); and ignoring the explicit
immunization of interoperability from anticircumvention liability under
§ 1201(f);[^15] the broad policy implications of considering "access" in
a vacuum devoid of "protection" are both absurd and disastrous. Under
Chamberlain's proposed construction, explicated at oral argument,
disabling a burglar alarm to gain "access" to a home containing
copyrighted books, music, art, and periodicals would violate the DMCA;
anyone who did so would unquestionably have "circumvent\[ed\] a
technological measure that effectively controls access to a work
protected under \[the Copyright Act\]." § 1201(a)(1). The appropriate
deterrents to this type of behavior lie in tort law and criminal law,
[not]{.underline} in copyright law. Yet, were we to read the statute's
"plain language" as Chamberlain urges, disabling a burglar alarm would
be a per se violation of the DMCA.

In a similar vein, 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.[^16] 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,
[see]{.underline} [Eastman Kodak Co. v. Image Tech. Servs.]{.underline},
504 U.S. 451, 455 (1992), and the doctrine of copyright misuse,
[Assessment Techs. of WI, LLC v. WIREdata, Inc.]{.underline}, 350 F.3d
640, 647 (7th Cir. 2003), normally prohibit.

Even were we to assume arguendo that the DMCA's anticircumvention
provisions created a new property right, Chamberlain's attempt to infer
such an exemption from copyright misuse and antitrust liability would
[still]{.underline} be wrong. We have noted numerous times that as a
matter of Federal Circuit law, "\[i\]ntellectual property rights do not
confer a privilege to violate the antitrust laws. But it is also correct
that the antitrust laws do not negate \[a\] patentee's right to exclude
others from patent property." [CSU, L.L.C. v. Xerox Corp.]{.underline},
203 F.3d 1322, 1325 (Fed. Cir. 2000) (citations omitted). In what we
previously termed "the most extensive analysis of the effect of a
unilateral refusal to license copyrighted expression,"
[id.]{.underline}, among our sister Circuits, the First Circuit
explained that: "\[T\]he Copyright Act does not explicitly purport to
limit the scope of the Sherman Act. . . . \[W\]e must harmonize the two
\[Acts\] as best we can." [Data Gen. Corp. v. Grumman Sys. Support
Corp.]{.underline}, 36 F.3d 1147, 1186-87 (1st Cir. 1994). Our previous
consideration of [Data General]{.underline} led us to conclude that it
was "consistent with both the antitrust and the copyright laws and is
the standard that would most likely be followed by the Tenth Circuit."
[CSU]{.underline}, 203 F.3d at 1329.

Because nothing in Seventh Circuit law contradicts [Data
General]{.underline}, we similarly conclude that it is the standard that
the Seventh Circuit would most likely follow. The DMCA, as part of the
Copyright Act, does not limit the scope of the antitrust laws, either
explicitly or implicitly. The Supreme Court

> has considered the issue of implied repeal of the antitrust laws in
> the context of a variety of regulatory schemes and procedures. Certain
> axioms of construction are now clearly established. Repeal of the
> antitrust laws by implication is not favored and not casually to be
> allowed. Only where there is a plain repugnancy between the antitrust
> and regulatory provisions will repeal be implied.

[Gordon v. N.Y. Stock Exch., Inc.]{.underline}, 422 U.S. 659, 682
(1975). No such "plain repugnancy" separates the DMCA from the antitrust
laws---unless we adopt Chamberlain's rather extreme proposed
construction of its language. The recognition that the DMCA [does
not]{.underline} create a new property right drives the point home even
further: plaintiffs alleging DMCA liability to protect their property
rights are not exempt from other bodies of law.

Finally, the requisite "authorization," on which the District Court
granted Skylink summary judgment, points to yet another inconsistency in
Chamberlain's proposed construction. The notion of authorization is
central to understanding § 1201(a). [See, e.g.]{.underline}, S. Rep.
105-90 at 28 (1998) ("Subsection (a) applies when a person has not
obtained authorized access to a copy or a phonorecord that is protected
under the Copyright Act and for which the copyright owner has put in
place a technological measure that effectively controls access to his or
her work."). Underlying Chamberlain's argument on appeal that it has not
granted such authorization lies the necessary assumption that
Chamberlain is entitled to prohibit legitimate purchasers of its
embedded software from "accessing" the software by using it. Such an
entitlement, however, would go far beyond the idea that the DMCA allows
copyright owner to prohibit "fair uses . . . as well as foul."
[Reimerdes]{.underline}, 111 F. Supp. 2d at 304. Chamberlain's proposed
construction would allow copyright owners to prohibit [exclusively
fair]{.underline} 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. Copyright law itself authorizes the
public to make certain uses of copyrighted materials. Consumers who
purchase a product containing a copy of embedded software have the
inherent legal right to use that copy of the software. What the law
authorizes, Chamberlain cannot revoke.[^17]

Chamberlain's proposed severance of "access" from "protection" is
entirely inconsistent with the context defined by the total statutory
structure of the Copyright Act, other simultaneously enacted provisions
of the DMCA, and clear Congressional intent. [See]{.underline}
[Tidewater Oil]{.underline}, 409 U.S. at 157. It "would lead to a result
so bizarre that Congress could not have intended it." [Central
Bank]{.underline}, 511 U.S. at 188. The statutory structure and the
legislative history both make it clear that the DMCA granted copyright
holders additional legal protections, but neither rescinded the basic
bargain granting the public noninfringing and fair uses of copyrighted
materials, § 1201(c), nor prohibited various beneficial uses of
circumvention technology, such as those exempted under §§
1201(d),(f),(g),(j). [See]{.underline} [Reimerdes]{.underline}, 111 F.
Supp. 2d at 323.

We therefore reject Chamberlain's proposed construction in its entirety.
We conclude that 17 U.S.C. § 1201 prohibits only forms of access that
bear a reasonable relationship to the protections that the Copyright Act
otherwise affords copyright owners. While such a rule of reason may
create some uncertainty and consume some judicial resources, it is the
only meaningful reading of the statute. Congress attempted to balance
the legitimate interests of copyright owners with those of consumers of
copyrighted products. [See]{.underline} H.R. Rep. No. 105-551, at 26
(1998). The courts must adhere to the language that Congress enacted to
determine how it attempted to achieve that balance. [See]{.underline}
[Gwaltney]{.underline}, 484 U.S. at 56.

As we have seen, Congress chose to create new causes of action for
circumvention and for trafficking in circumvention devices. Congress did
not choose to create new property rights. That is the choice that we
have identified. "It is not for us to resolve the issues of public
policy implicated by the choice we have identified. Those issues are for
Congress." [Corley]{.underline}, 273 F.3d at 458. Were we to interpret
Congress's words in a way that eliminated all balance and granted
copyright owners carte blanche authority to preclude all use,
Congressional intent would remain unrealized.

Congress chose words consistent with its stated intent to balance two
sets of concerns pushing in opposite directions. [See]{.underline} H.R.
Rep. No. 105-551, at 26 (1998).[^18] The statute lays out broad
categories of liability and broad exemptions from liability. It also
instructs the courts explicitly [not]{.underline} to construe the
anticircumvention provisions in ways that would effectively repeal
longstanding principles of copyright law. [See]{.underline} §
1201(c).[^19] The courts must decide where the balance between the
rights of copyright owners and those of the broad public tilts subject
to a fact-specific rule of reason. Here, Chamberlain can point to no
protected property right that Skylink imperils. The DMCA cannot allow
Chamberlain to retract the most fundamental right that the Copyright Act
grants consumers: the right to use the copy of Chamberlain's embedded
software that they purchased.

### Chamberlain's DMCA Claim

The proper construction of § 1201(a)(2) therefore makes it clear that
Chamberlain cannot prevail. A plaintiff alleging a violation of §
1201(a)(2) must prove: (1) ownership of a valid [copyright]{.underline}
on a work, (2) effectively controlled by a [technological
measure]{.underline}, which has been circumvented, (3) that third
parties can now [access]{.underline} (4) [without
authorization]{.underline}, in a manner that (5) infringes or
facilitates infringing a right [protected]{.underline} by the Copyright
Act, because of a product that (6) the defendant either (i) [designed or
produced]{.underline} primarily for circumvention; (ii) made available
despite only [limited commercial significance]{.underline} other than
circumvention; or (iii) [marketed]{.underline} for use in circumvention
of the controlling technological measure. A plaintiff incapable of
establishing any one of elements (1) through (5) will have failed to
prove a prima facie case. A plaintiff capable of proving elements (1)
through (5) need prove only one of (6)(i), (ii), or (iii) to shift the
burden back to the defendant. At that point, the various affirmative
defenses enumerated throughout § 1201 become relevant.

The District Court analyzed Chamberlain's allegations in precisely the
appropriate manner---a narrow focus on Skylink's behavior, intent, and
product within the broader context of longstanding expectations
throughout the industry. The District Court assumed that Chamberlain met
the first element, copyright ownership, and for the purposes of its
summary judgment motions accepted Chamberlain's evidence of the second
element, technological access control. The District Court granted
Skylink's motion for summary judgment because Chamberlain failed to meet
its burden on the fourth element, the lack of authorization. Chamberlain
emphatically contests this conclusion on appeal, though mostly by
reiterating arguments that the District Court correctly rejected.

Chamberlain, however, has failed to show not only the requisite lack of
authorization, but also the necessary fifth element of its claim, the
critical nexus between access and protection. Chamberlain neither
alleged copyright infringement [nor explained how the access provided by
the Model 39 transmitter facilitates the infringement of any right that
the Copyright Act protects.]{.underline} There can therefore be no
reasonable relationship between the access that homeowners gain to
Chamberlain's copyrighted software when using Skylink's Model 39
transmitter and the protections that the Copyright Act grants to
Chamberlain. The Copyright Act authorized Chamberlain's customers to use
the copy of Chamberlain's copyrighted software embedded in the GDOs that
they purchased. Chamberlain's customers are therefore immune from §
1201(a)(1) circumvention liability. In the absence of allegations of
either copyright infringement or § 1201(a)(1) circumvention, Skylink
cannot be liable for § 1201(a)(2) trafficking. The District Court's
grant of summary judgment in Skylink's favor was correct. Chamberlain
failed to allege a claim under 17 U.S.C. § 1201.

# CONCLUSION

The DMCA does not create a new property right for copyright owners. Nor,
for that matter, does it divest the public of the property rights that
the Copyright Act has long granted to the public. The anticircumvention
and anti-trafficking provisions of the DMCA create new grounds of
liability. A copyright owner seeking to impose liability on an accused
circumventor must demonstrate a reasonable relationship between the
circumvention at issue and a use relating to a property right for which
the Copyright Act permits the copyright owner to withhold
authorization---as well as notice that authorization was withheld. A
copyright owner seeking to impose liability on an accused trafficker
must demonstrate that the trafficker's device enables either copyright
infringement or a prohibited circumvention. Here, the District Court
correctly ruled that Chamberlain pled no connection between unauthorized
use of its copyrighted software and Skylink's accused transmitter. This
connection is critical to sustaining a cause of action under the DMCA.
We therefore affirm the District Court's summary judgment in favor of
Skylink.

# AFFIRM

# COSTS

Each party shall bear its own costs.

[^1]: Chamberlain's product, the "Clicker," interoperates with both
    Chamberlain and non-Chamberlain GDOs.

[^2]: According to Skylink, Chamberlain introduced rolling codes to
    prevent inadvertent GDO activation by planes passing overhead, not
    as a security measure.

[^3]: The Model 39 interoperates with at least 15 different brands and
    dozens of different GDO models, only a few of which include
    Chamberlain's rolling code. One of the Model 39's settings
    interoperates [only]{.underline} with Chamberlain rolling code GDOs.

[^4]: According to Chamberlain, the transmitter program is registered
    with the United States Copyright Office as No. TX5-533-065, and the
    computer program in the receiver is registered with the United
    States Copyright Office as No. TX5-549-995. The parties dispute
    whether the code used in the program is precisely the registered
    code or a slight variation thereof, possibly qualifying as a
    derivative work. Because this appeal is of a summary judgment
    favoring Skylink, however, we view all disputed facts in the light
    most favorable to Chamberlain, and therefore assume that all
    programs in question are fully protected by the copyright laws.

[^5]:
    > § 1201.  Circumvention of copyright protection systems. . .
    >
    > \(f\) Reverse engineering.
    >
    >    (1) Notwithstanding the provisions of subsection (a)(1)(A), a
    > person who has lawfully obtained the right to use a copy of a
    > computer program may circumvent a technological measure that
    > effectively controls access to a particular portion of that
    > program for the sole purpose of identifying and analyzing those
    > elements of the program that are necessary to achieve
    > interoperability of an independently created computer program with
    > other programs. . . to the extent any such acts of identification
    > and analysis do not constitute infringement under this title. . .
    > .
    >
    >    (4) For purposes of this subsection, the term
    > "interoperability" means the ability of computer programs to
    > exchange information, and of such programs mutually to use the
    > information which has been exchanged.
    >
    > 17 U.S.C. § 1201(f). Computer and Communications Industry
    > Association (CCIA), first as an amicus to the District Court and
    > now as an amicus to this court, submitted § 1201(f) as an
    > alternative basis for finding in favor of Skylink.

[^6]: Unpublished opinions of the Federal Circuit may not be cited as
    precedent, but are nevertheless binding on the parties. Because of
    the wording of the District Court's dismissal, this particular
    unpublished opinion is critical to determining the status of Count
    II in the present matter.

[^7]: According to the District Court, Chamberlain also argued that it
    never authorized its customers to use Model 39 transmitters in a
    separate action in front of the International Trade Commission
    ("ITC"). [In the Matter of Certain Universal Transmitters for Garage
    Door Openers ("Matter of GDOs")]{.underline}, Inv. No. 337-TA-497,
    2003 WL, slip op. at 39, 41-42 (Nov. 4, 2003). The ITC's
    Administrative Law Judge rejected the argument. [See]{.underline}
    [Chamberlain II]{.underline}, 292 F. Supp. 2d at 1044-45. That
    matter is the subject of a separate appeal still pending.

[^8]: Two amici urging us to affirm raised additional arguments that
    warrant mention. Amicus Computer and Communications Industry
    Association (CCIA) urges us to consider the import of § 1201(f),
    which explicitly allows circumvention for the purposes of achieving
    interoperability. Amicus Consumers Union (CU) urges us to consider
    the policy implications of Chamberlain's proposed construction to
    consumers and to aftermarket competitors. According to CU,
    Chamberlain's proposed construction of the DMCA would enable
    copyright owners to engage in a number of practices that would
    otherwise be considered copyright misuse, an antitrust violation, or
    a violation of state unfair competition laws. At oral argument,
    Chamberlain conceded that its proposed construction would, indeed,
    alter virtually all existing consumer expectations concerning the
    public's rights to use purchased products containing copyrighted
    software protected by a technological measure---effectively
    confirming CU's fears.

[^9]: Both parties relied on the trial court's decision in this case,
    rather than the Second Circuit's decision, presumably because the
    trial court, but not the Court of Appeals, addressed §
    1201(a)(2)(A).

[^10]: Amicus CU also raised this issue in its brief to this court.

[^11]: WIPO Treaty, Apr. 12, 1997, art. 11, S. Treaty Doc. No. 105-17
    (1997), [available at]{.underline} 1997 WL 447232.

[^12]: "No person shall manufacture, import, offer to the public,
    provide, or otherwise traffic in any technology, product, service,
    device, component, or part thereof, that . . . \[circumvents\] a
    technological measure that effectively protects [a right of a
    copyright owner]{.underline} under this title in a work or a portion
    thereof." 35 U.S.C. § 1201(b)(1) (emphasis added).

[^13]: For obvious reasons, § 1201(a)(2) trafficking liability cannot
    exist in the absence of § 1201(a)(1) violations---much as this court
    has often explained that "indirect \[patent\] infringement, whether
    inducement to infringe or contributory infringement, can only arise
    in the presence of direct infringement, though the direct infringer
    is typically someone other than the defendant accused of indirect
    infringement." [Dynacore Holdings Corp. v. U.S. Philips
    Corp.]{.underline}, 363 F.3d 1263, 1272 (Fed. Cir. 2004).

[^14]: We do not reach the relationship between § 107 fair use and
    violations of § 1201. The District Court in [Reimerdes]{.underline}
    rejected the DeCSS defendants' argument that fair use was a
    [necessary]{.underline} defense to § 1201(a),
    [Reimerdes]{.underline}, 111 F.Supp. 2d at 317; because
    [any]{.underline} access enables some fair uses, any act of
    circumvention would embody its own defense. We leave open the
    question as to when § 107 might serve as an affirmative defense to a
    prima facie violation of § 1201. 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.

[^15]: Amicus CCIA expanded on this argument in its amicus briefs to
    both the District Court and this court. Though the District Court
    found this argument at least superficially persuasive, it did not
    reach it. On the facts of this case, neither can we. Because §
    1201(f) is an affirmative defense, it becomes relevant only if
    Chamberlain can prove a prima facie case and shift the burden of
    proof to Skylink.

[^16]: Amicus CU expanded on this policy implication in its brief to
    this court.

[^17]: It is not clear whether a consumer who circumvents a
    technological measure controlling access to a copyrighted work in a
    manner that enables uses permitted under the Copyright Act but
    prohibited by contract can be subject to liability under the DMCA.
    Because Chamberlain did not attempt to limit its customers' use of
    its product by contract, however, we do not reach this issue.

[^18]: [See also]{.underline} David Nimmer, [A Riff on Fair Use in the
    Digital Millennium Copyright Act]{.underline}, 148 U. Pa. L. Rev.
    673 (2000).

[^19]: [See also]{.underline} [Recent Cases: Copyright Law]{.underline},
    114 Harv. L. Rev. 1390 (2001).