Yesterday, a district court dismissed several claims in the case Coupons, Inc. v. Stottlemire, in which we had, in March, filed an amicus brief. Coupons offers online coupons that consumers can access and print using software provided by Coupons. The software tries to limit the number of times a user can print each coupon. Coupons claims that John Stottlemire created a tool that modifies the Coupons software, allowing users to print more coupons.
The claims we were most interested in were Coupons's "anti-circumvention" claims under the Digital Millennium Copyright Act (DMCA). Coupons claimed that Stottlemire's tool circumvents technological measures that limit use of its coupons (a "rights-control" claim), but also tried to allege that the tool circumvents measures that limit access to those coupons (an "access-control" claim). The problem is that the tool doesn't have anything to do with access - anyone can access the coupons whether they use the original software or the modified software.
This isn't just an academic issue. While the DMCA prohibits the distribution of tools that circumvent rights or access controls, it prohibits actual circumvention (e.g., through use of such tools) only in the case of access controls. This is because controlling use of copyrighted material is already addressed by copyright law, and addressing it again in the DMCA would upset the careful balance between the rights of copyright owners and those of the public. As the court properly understood, maintaining a clear distinction between access-control claims and rights-control claims "leaves room for individual fair uses, adaptations for the blind, library research, and the other statutory exceptions to copyright." Because the court agreed that Coupons's DMCA claims "blur the carefully constructed distinction between 'access controls' and 'rights controls,'" the court dismissed the access-control claim. (The court is giving Coupons a chance to try to amend its access-control claim to see if it can save it, but it seems unlikely to us that Coupons can do that.)
At the hearing, EFF's positions were ably argued by Hari O'Connell and Domenic Ippolito, law student members of the Samuelson Law, Technology and Policy Clinic at the Berkeley School of Law.