Employee’s unauthorized conduct was not a DMCA prohibited circumvention

From Internet Cases:

Plaintiff sued its former employee and alleged, among other things, that defendant violated the anticircumvention provisions of the Digital Millennium Copyright Act  (17 USC 1201). While defendant was still an employee, she used her username and password to access and download copyrighted material stored on plaintiff’s server after she had already accepted an employment offer from a competitor.

. . . .

The court’s holding centered on what the DMCA means by “circumvent a technological measure”. The statute requires that for there to be circumvention, one must “descramble a scrambled work . . . decrypt an encrypted work, or otherwise . . . avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”

. . . .

The court found that even if the use that defendant made of that access was not something that plaintiff would have authorized her to do, i.e. copy the materials at issue, defendant’s alleged abuse of her logon privileges did not rise to the level of descrambling, decrypting, or otherwise avoiding, bypassing, removing, deactivating, or impairing anything.

Link to the rest at Internet Cases

PG assures one and all that TPV is not going to become a legal blog.

However, the Digital Millennium Copyright Act, enacted in 1998, is an important protection for authors, especially where ebooks are involved.

As anyone paying attention knows, pirated intellectual property in digital form is a lovely thing for those who don’t want to pay creators, are cash-strapped college students, etc., etc. While making a copy of a physical book doesn’t require any particular skill, it does require time and labor. Making a copy of an ebook is much less difficult, even if it is protected by DRM (Digital Rights Management) software.

Here’s a link to one of many online descriptions of how to remove DRM protection. This particular link includes a step-by-step description of how to use Calibre plus a third-party DRM Removal Plugin to remove copy protection from every major ebook format. Under current law, doing this is illegal as is creating software to remove DRM protection, even for your own use.

The provisions of the DMCA that prohibit this are generically referred to as the anti-circumvention provision and are found in n 17 U.S.C. 1201(a), 1203, and 1204.

The core of the prohibition is included in 1201(a)(1)(A)

(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

1201(a)(3) provides a couple of relevant definitions:

(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.

The Electronic Frontier Foundation has filed suit to invalidate these anti-circumvention provisions or otherwise neuter them. Here’s a link to a recent status report on the litigation written by Cory Doctorow.