Apples, Oranges and “Contributory Circumvention”
Apples, Oranges and “Contributory Circumvention”
Apples, Oranges and “Contributory Circumvention”

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    In a recently filed complaint, plaintiffs bend copyright law and the anticircumvention provision of the DMCA in what appears to be an attempt to create a new kind of liability.

    Under copyright law, the theory of secondary liability is used to hold someone responsible for someone else's infringing activities. Generally, that kind of liability hinges upon and is limited to “materially contributing to” or “financially benefiting from” the infringing activity. The Grokster case determined that inducing infringement can be sufficient for a finding of secondary liability. Inducement is still a rather vague standard, but the Court generally indicated that if distributors advertise a program or service as one that is designed to infringe, the distributors could be liable for secondary infringement based on inducement. In a recently filed complaint]( , DeVry/Becker Educational Group has incorporated the relatively new inducement standard into a claim that the defendant violated the anticircumvention provision of the DMCA.

    DeVry is an educational institution that offers a CPA review class. When students register for the class, DeVry authorizes them to use the “Becker CPA Review” software. Without further authorization from DeVry, students' licenses to use the program expire after one year. Allegedly, the defendant circumvented the technological provisions that limit students' use of the program so that it can be used after the year-long license has expired. Among other things, DeVry claims that the defendant is liable for contributory circumvention of technological measures because he made instructions for breaking the technological protections that made the program inaccessible after a year available to the public.

    DeVry's claim is highly creative and somewhat puzzling since there is no statutory basis for a claim of contributory circumvention. The anticircumvention provision of the DMCA simply prohibits circumventing technological measures, or locks. However, anticircumvention is not infringement. The anticircumvention provision is designed to protect technological locks in the hope that making it illegal to break such locks will indirectly curb infringement. However, since the provision simply prohibits breaking locks and does not even mention infringement, it's bizarre to claim that the defendant violated the anticircumvention provision via a standard used for infringement.

    Since the defendant could be found liable under a number of theories, DeVry certainly does not need to stretch existing caselaw and statutes in order to reach the defendant. It's conceivable that the defendant could be secondarily liable for simply inducing infringement, and could also be independently liable for circumventing the technological measures. At best, the “inducement of circumvention” claim and the theory behind it is gratuitous, and at worst, the foundation of a dangerous precedent.

    Using a standard that is endemic to the realm of secondary liability to generate a new form of liability that does not have any basis in existing law opens a Pandora's box. Anyone who could be found liable for inducing circumvention could almost certainly be liable for 1) infringement and/or 2) circumvention. In addition to creating a new, unnecessary form of liability, if the court accepts this claim, it would mean that one particular vein of law could simply be cut and pasted into another. Specific statutes and caselaw are built upon individualized fact-sets–there are no legal panaceas. Using tenants of copyright law to reach a defendant who allegedly violated a specific type of technology law confuses apples and oranges. While the copyright based inducement standard and the technology based anticircumvention provision fall under the same large umbrella of tools plaintiffs can use to directly and indirectly address infringement, infringement and anticircumvention are fundamentally different activities. Those differences should not be blurred in the eyes of the law.