Court finds CAPTCHA likely protectible under DMCA

Ticketmaster L.L.C. v. RMG Technologies, Inc., — F.Supp.2d —-, 2007 WL 2988403 (C. D. Cal. Oct. 15, 2007)

RMG Technologies developed an application that allowed its users to automatically access Ticketmaster.com to search for tickets and buy them up by the dozens. Ticketmaster sued RMG, alleging, among other things, copyright infringement, breach of contract, and violation of the anticircumvention provisions of the Digital Millennium Copyright Act found at 17 U.S.C. 1201.

Ticketmaster moved for preliminary injunction on several of the counts in the complaint, and the court granted the motion. It held that Ticketmaster was likely to succeed on its claims of copyright infringement, in that RMG’s access to the Ticketmaster website exceeded the scope of the license to do so granted by the site’s browsewrap agreement. The court also held that under Grokster, Ticketmaster was also likely to succeed in showing that RMG was indirectly liable for inducing infringement through the promotion of the application.

On the DMCA claim, Ticketmaster claimed that by providing the ability for users to get around the CAPTCHAs that have to be solved in order to purchase tickets, RMG trafficked in technology that circumvents a technological measure used to prevent access to a work protected by copyright. (CAPTCHAs are the little challenge-response tests that appear frequently on websites requiring login or authentication, used to help ensure that it’s really a human and not a bot trying to access the website.)

One of RMG’s primary arguments against the preliminary injunction on DMCA grounds was that the CAPTCHAs were not “technological measures” used to circumvent the access protection, but were merely images. The court rejected this argument, looking to the language of the DMCA which provides, in relevant part, that “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.”

In this case, the court found that CAPTCHAS meet these criteria, because in their ordinary course of operation, they require the application of information before access to the work being protected is allowed.

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