Seven years have passed since Congress enacted the Digital Millennium Copyright Act (DMCA), the statute which makes circumventing technological barriers to copyrighted works illegal. [1] In the meantime, the DMCA has been widely criticized, and, within the last two years, undergone a major change in interpretation by the Federal Circuit in Chamberlain Group, Inc. v. Skylink Technologies, Inc. [2] In Chamberlain, concerned that the DMCA had created an entirely new property right, the Federal Circuit added a new limitation to the scope of the DMCA. Chamberlain held that a plaintiff must prove a “reasonable relation” between access to a copyrighted work and infringement. What this “reasonable relation” means however, has yet to be defined.


The nature of the “reasonable relation” test goes to the heart of the DMCA and its impact on innovation. If the “reasonable relation” between access and infringement is too broad, the DMCA will stifle many ideas which build on protected works, because the public will be prevented from accessing works for the purpose of creating improved versions and interoperable products. Innovation depends in large measure upon building on the works of others. As Sir Isaac Newton famously said, “If I have seen farther than others, it is because I have stood upon the shoulders of giants.” [3] On the other hand, if the “reasonable relation” is too narrow, then the DMCA would prohibit too little access. Creative works in digital formats would be subject to massive piracy. Creators would then lose the profit incentive to create any works at all.


In this paper, I suggest six possible “reasonable relations:” 1) ‘but for’ causality, 2) reasonable foreseeability, 3) Sony‘s [4] substantial non-infringing use, 4) defendant’s intent, 5) vicarious liability, and 6) Judge Posner’s balancing approach in In Re Aimster. [5] I evaluate these possible “reasonable relations” in light of the policies underlying copyright law and the DMCA using the facts of Davidson & Associates v. Jung [6] as a test case. I show how these different possible “reasonable relations” would play out in the facts of Davidson because these facts demonstrate the complexity of digital technology. Moreover, Davidson illustrates the pitfalls and promise of the internet revolution.  In Davidson, the plaintiffs worried about mass piracy of video games they had invested millions of dollars to create. [7] Meanwhile, the defendants created an improved network on which to play the games [8] — precisely the type of innovation and creativity that copyright law is intended to promote.


The second part of this paper discusses copyright law and the DMCA. In the third part, I examine the interpretation of the DMCA in Chamberlain. The fourth part introduces Davidson and discusses the correct outcome given copyright law policies. I apply Chamberlain‘s interpretation of the DMCA to the facts in Davidson in the fifth part and discuss which “reasonable relations” would produce the right result in light of copyright law policies. Finally, I give my conclusions….


Zoe Argento