Blizzard v. MDY question

MDY Industries, LLC v. Blizzard Entertainment, Inc., No. 09-15932 (9th Cir. 2010)

Other people will have plenty to say about this DMCA decision. What I am interested in is a small point about the tension between the court’s copyright/contract ruling and its DMCA reasoning. A licensee’s violation of the ToS generally doesn’t lead to infringement, the court ruled, unless the violation is also itself a violation of copyright law (this is oversimplification, but go with me); the result is that the plaintiff’s remedy in such an instance is in contract, not in copyright. The court made an “arguabl[e]” exception where breach of contract would constitute copyright infringement for “continuing to use the licensed work while failing to make required payments, even though a failure to make payments otherwise lacks a nexus to the licensor’s exclusive statutory rights,” because payment is sui generis.

Okay, then. But this conclusion takes at least one leg out of the panel’s reasoning that a DMCA violation needs no nexus to copyright infringement. According to the panel, the legislative history makes clear that no relationship to copyright infringement is necessary for a DMCA violation, because “[i]n § 1201(a), Congress was particularly concerned with encouraging copyright owners to make their works available in digital formats such as ‘on-demand’ or ‘pay-per-view,’ which allow consumers effectively to ‘borrow’ a copy of the work for a limited time or a limited number of uses.” But, given the court’s ruling in the previous section, isn’t it the case that a customer who circumvented access controls to avoid a payment requirement would be engaged in copyright infringement, thus creating a one-to-one nexus (more than the Chamberlain court required)?