Pro-DRM decision under DMCA

Actuate Corp. v. IBM Corp., No. 09-5892 (N.D. Cal. April 5, 2010) [Scroll down for opinion]

Distribution of software license keys on the internet may constitute trafficking in circumvention technology, which is prohibited under the Digital Millennium Copyright Act (“DMCA”)

Plaintiff software licensor sued defendant for, among other things, violation of the anticircumvention provisions of the DMCA found at 17 USC 1201. Plaintiff alleged that defendant posted license keys on the internet, which purportedly would enable plaintiff’s software to be “installed on an unlimited basis.”

Defendant moved to dismiss, pointing to a line of cases including I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc. and Egilman v. Keller & Heckman, LLP [see this old blog post about Egilman].

The I.M.S. line of cases hold that the use of a password issued by the copyright holder does not amount to “circumvention” under the DMCA. Under this thinking, the use of an issued password, even if done without authority, does not result in the “avoiding, bypassing, removing, deactivating, or otherwise impairing [of] a technological measure.”

But another line of cases, headed by 321 Studios v. MGM Studios, Inc. suggests differently. The court in 321 Studios reasoned that unauthorized use of a decryption code (the same one issued by the manufacturer) to bypass the encryption on a DVD served to avoid and bypass the encryption.

In this case, despite both parties’ attempts to show the compatibility of the lines of cases, the court found them to be irreconcilable. It sided with the thinking behind the 321 Studios line, finding no support for a distinction between passwords and other types of code that might be used for decryption.

Here’s the opinion:

Skeleton key photo courtesy Flickr user theogeo under this Creative Commons license.

Wife posts pics with boyfriend on MySpace, loses child custody

And you should have heard what the judge said in open court!

Lipps v. Lipps, 2010 Ark. App. 295, 2010 WL 1379803 (Ark. App. April 7, 2010). [Read the opinion]

This is one of those cases that’d do well as a movie on Lifetime Television for Women. Unlike other cases I talk about on this blog, this one only kind of deals with the internet Here the husband (an Iraq war veteran) saw pictures on MySpace of his wife in bed with another man, so he filed for divorce and sought child custody.

What’s worth paying attention to in this case is the “disparaging and intemperate remarks” made in open court by the judge.

At a hearing where the judge entered a temporary order granting joint custody of the couples’ infant son, the court admonished the wife/mother, characterizing her situation as “a nightmare every parent faces . . . when you have got a child that acts like a slut, quite frankly, a slut.”

Later in the case the judge granted sole custody to the husband. The wife sought review with the Arkansas appellate court. On appeal, that court affirmed the trial court’s order on custody.

The wife had argued that the trial court judge was biased, and asked for a new trial with an impartial judge. Although the appellate court was “deeply troubled” by judge’s rude remarks, it held that because the wife had not raised that argument in the trial court, and had not asked the judge to recuse himself, the court could not consider that question on appeal.

So the court affirmed the foul-mouthed judge.

The appellate opinion is embedded below:

2010-04-07_lipps_v_lipps