Federal Circuit V. Ninth Circuit: A Split over the Conflicting Approaches to DMCA Section 1201

INTRODUCTION I. ORIGINAL POLICY GOALS OF THE DMCA II. CHAMBERLAIN I & II III. THE RIGHT OF ACCESS IV. CHAMBERLAIN ILL: REASONABLE RELATION V. REASONABLE RELATIONSHIP TESTS A. But-for causality B. Reasonable foreseeability C. Substantial non-infringing use D. Defendant's intent E. Vicarious liability F. Aimster balancing test VI. THE NINTH CIRCUIT TAKES THE OPPOSITE VIEW: MDY INDUSTRIES CONCLUSION INTRODUCTION Prior to opening statements in U.S.A. v. Crippen, (1) a federal criminal DMCA case, U.S. District Judge Phillip Gutierrez vented his frustration during a 30-minute tirade to prosecutors. "I really don't understand what we're doing here," he began. (2) The defendant, Matthew Crippen, was charged with two counts of violating the anti-circumvention provisions of the DMCA, facing a maximum of five years in prison for each count. The government alleged that Crippen ran a business modifying the firmware on Xbox systems to make them capable of running pirated copies of games. Crippen asserted the Betamax defense, (3) arguing that his firmware modifications were legal because they had significant non-infringing uses, such as allowing the user to run alternative software or to make backup copies of their own games. Prosecutors responded that the DMCA did not allow a defendant in a [section] 1201 action to use the defenses of traditional copyright law, such as the Betamax defense. Judge Gutierrez seemed to think (and this author agrees) that the anti-circumvention and anti-trafficking provisions in [section] 1201 are oddly disconnected from familiar copyright law and policy. The root of Judge Gutierrez's frustration is that the DMCA's anti-circumvention provisions are in direct conflict with traditional intellectual property doctrine and public policy. Thanks to the misinterpretation of the statute, the lack of any relationship between these provisions and traditional copyright protection has allowed for absurd conclusions, bizarre limitations of fair use, and obtuse applications of the law that threaten long-standing policy goals of intellectual property law and antitrust law. The Chamberlain line of cases provided an opportunity for the Federal Circuit to examine the balance between the DMCA's prohibition of unauthorized access and traditional copyright protection, in light of consumers' expectations regarding the products they own. Misinterpretation of the DMCA was threatening to create a dangerous new property right, the right of access, completely detached from the traditional bundle of rights in [section] 106 of the Copyright Act, resulting in two distinct copyright regimes. In Chamberlain III, the Federal Circuit countered the threat of access right theory, adding a new limitation to the scope of [section] 1201: a reasonable relation between access and the traditional protections of copyright. The Federal Circuit's reasonable relation test brought [section] 1201 of the DMCA back in harmony with the rest of the Copyright Act and its legislative intent, restoring the balance between the interests of content owners in countering the digital threat and consumers' expectations regarding the products they own. Unfortunately, the Ninth Circuit recently rejected the Federal Circuit's reasonable relation test in MDY Industries, breathing new life into the notion that [section] 1201 creates a new right of access, distinct from the rights of traditional copyright law. Because the two holdings are completely incompatible, with the Ninth Circuit expressly rejecting the Federal Circuit's interpretation of [section] 1201, the result is a circuit split. The time is ripe for either a supreme Court review or Congressional action to determine which court got it right. The first part of this paper discusses the original policy goals of the DMCA. In the second part, I examine the issues in Chamberlain I & II. In the third part, I discuss the dangers of creating a new property right in the DMCA, the right of access. …