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CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 1 of 14
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`
`
`
`
`
`
`
`Plaintiff,
`
`Civil No. 16-1960 (DWF/LIB)
`
`
`MEMORANDUM
`OPINION AND ORDER
`
`Neil Leonard Haddley,
`
`
`
`v.
`
`Next Chapter Technology, Inc., a corporation;
`Vaughn Mulcrone, an individual;
`dataBridge, LLC, a limited liability company;
`County of Becker, Minnesota;
`County of Clay, Minnesota;
`County of Dodge, Minnesota;
`County of Isanti, Minnesota;
`County of Otter Tail, Minnesota;
`County of Mower, Minnesota;
`County of Steele, Minnesota; and
`County of Waseca, Minnesota;1
`
`
`
`
`
`Alexander Farrell, Esq., Hellmuth & Johnson PLLC, counsel for Plaintiff Neil Leonard
`Haddley.
`
`Bruce H. Little, Esq., Sarah Pruett, Esq., Autumn Gear, Esq., and Heidi J.K. Fessler,
`Esq., Lindquist & Vennum LLP, counsel for Defendants.
`
`
`
`
`Defendants.
`
`
`
`
`
`
`In an Order dated April 25, 2017, the Court dismissed Count II insofar as it was
`1
`asserted against County Defendants. (Doc. No. 63 at 14-15.) The Court notes that
`Counts I and III are not asserted against the following counties: Kittson,
`Mahnomen, Marshall, Norman, Polk, Red Lake, Roseau, Kandiyohi, Rice, Scott, and
`Stearns. Therefore, those counties are properly removed from the caption of this case.
`
`
`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 2 of 14
`
`INTRODUCTION
`
`
`
`This matter is before the Court on Defendants’ Motion for Partial Summary
`
`Judgment (Doc. No. 103). For the reasons set forth below, the Court denies the motion.
`
`BACKGROUND
`
`Plaintiff Neil Haddley is the creator and copyright holder of Scanning Enabler, a
`
`software program that allows users to scan paper documents into electronic form. (Doc.
`
`No. 69 (Consolidated Amended Complaint (“CAC”)) ¶¶ 33, 35.) Scanning Enabler is
`
`activated by a license key. (Id. ¶ 42.) A license key system assigns a unique key number
`
`to each licensee and is intended to limit and control access to licensed software. (Id.
`
`¶ 40.) In order to download Scanning Enabler, one must use a valid license key. (Id.
`
`¶ 42.) Scanning Enabler resides on and is used at the server; workstations can connect to
`
`the server and access the software via ActiveX controllers. (CAC ¶ 70; Doc. No. 118
`
`(“Farrell Decl.”) ¶ 3, Ex. B (“Haddley Dep.”) at 40.)2
`
`Defendant Next Chapter Technology, Inc. (“NCT”) developed and licenses its
`
`own product, CaseWorks, to various Minnesota counties. (CAC ¶ 6; Doc. No. 106
`
`(“Little Decl.”) ¶¶ 11-12, 14-15, Exs. 9-10, 12-13; Doc. No. 108 (“Mulcrone Decl.”) ¶ 2,
`
`Ex. 1 (“Mulcrone First Action Decl.”) ¶¶ 7-9). CaseWorks is an electronic document
`
`management system (“EDMS”) that NCT installs on servers owned by its customer
`
`counties, who in turn use the software for essential government functions. (Mulcrone
`
`
`2
`Thus, downloading the ActiveX control to a workstation is required before using
`Scanning Enabler. (Haddley Dep. at 148.)
`
`
`
`
`2
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`

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`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 3 of 14
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`First Action Decl. ¶ 9.) CaseWorks includes a scanning feature, and in 2012 and 2013,
`
`the scanning software component used in CaseWorks was Scanning Enabler.
`
`In 2009, NCT entered into a re-seller arrangement for Scanning Enabler with Dark
`
`Blue Duck Solutions, LLC (“DBD”). (CAC ¶¶ 39, 46; Mulcrone First Action Decl.
`
`¶ 14.) DBD is a company formed by Haddley for the purpose of selling licenses to
`
`Haddley’s software. (Id. ¶ 39.) Per this agreement, from 2009 until 2012, Vaughn
`
`Mulcrone, the president and CEO of NCT, was authorized to re-sell Haddley’s software
`
`products, including Scanning Enabler, to third parties. (Id. ¶ 46.) In 2011 and 2012,
`
`Haddley was working for NCT, first as a consultant and later as the Chief Technical
`
`Officer (“CTO”) of NCT. (Mulcrone First Action Decl. ¶ 2.)
`
`In 2012, NCT requested a license from DBD for the Scanning Enabler software to
`
`be installed at and used by Clay County.3 (CAC ¶¶ 65, 66, 80, 81; Mulcrone Decl. ¶¶ 4,
`
`5, Exs. 3, 4; Mulcrone First Action Decl. ¶¶ 3, 16.) Clay County shared a server
`
`environment with Becker, Otter Tail, and later Isanti Counties. (Mulcrone First Action
`
`Decl. ¶ 3; CAC ¶¶ 72, 83, 90.) In 2013, NCT requested a license for the Scanning
`
`Enabler software to be installed at and used by Steele County. (CAC ¶¶ 91, 92;
`
`Mulcrone Decl. ¶¶ 6, 7, Exs. 5, 6.) Steele County shared a server environment with
`
`Waseca, Mower, and Dodge Counties. (Mulcrone First Action Decl. ¶ 4.) Defendants
`
`assert that these licenses were unrestricted single server licenses designated for
`
`3
`The parties dispute whether NCT purchased the license for itself or acquired the
`license for its county customers as a re-seller of Haddley’s software.
`
`
`
`
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`3
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`

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`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 4 of 14
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`installation on production servers hosted at both Clay and Steele Counties. (Mulcrone
`
`Decl. ¶¶ 4-9, Exs. 3-8 (License Keys for Clay and Steele County; invoices for the License
`
`Keys noting the purchase of “Scanning Enabler Server” and “Unrestricted License for
`
`one front-end server”).) Defendants assert that, when working as a consultant for or an
`
`employee of NCT, Haddley authorized and personally participated in the sharing and use
`
`of Scanning Enabler by County Defendants in the above server environments. (Mulcrone
`
`First Action Decl. ¶¶ 2-4.)
`
`Haddley disputes that he knew of and acquiesced to Defendants’ unrestricted use
`
`of Scanning Enabler in the shared server communities. For example, Haddley claims that
`
`he protested the Isanti County Defendant’s use of his software without a license.
`
`Specifically, Haddley testified that when he was on-site in Fergus Falls in December
`
`2012 (when the Otter Tail workstations were connected to the Clay server), he confronted
`
`John Dinsmore of Otter Tail County and expressed that he was unhappy with the
`
`configuration and indicated that they needed to purchase additional licenses. (Haddley
`
`Dep. at 165-66, 169.) In addition, Haddley asserts that after he refused to agree to a
`
`proposal put forward by NCT that affected Haddley’s licensing of Scanning Enabler,
`
`Haddley’s employment was terminated by NCT. (CAC ¶¶ 97-102.) Haddley alleges that
`
`NCT then retained Defendant dataBridge, LLC to help create a replacement software
`
`product called NCT Scan. (Id. ¶¶ 129-30.) Also, in October 2014, Haddley sent Notice
`
`of Claim letters to the County Defendants indicating his belief that they were using
`
`copyrighted works without his permission. (Id. ¶¶ 137-38, Ex. C.)
`
`
`
`4
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`

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`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 5 of 14
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`In this action, Plaintiff brings three claims: (1) copyright infringement against
`
`NCT, Mulcrone, and County Defendants for exceeding the licenses Hadley sold by
`
`permitting the eight County Defendants, instead of just Steele and Clay Counties, to use
`
`the Scanning Enabler at the Clay and Steele County servers; (2) copyright infringement
`
`against NCT, Mulcrone, and dataBridge LLC for creating an infringing derivative work
`
`based on the Scanning Enabler4; and (3) a claim under the Digital Millennium Copyright
`
`Act (“DMCA”), 17 U.S.C. § 1201(a)(1)(A) and § 1202(b)(1) against NCT, Mulcrone,
`
`and the County Defendants. Defendants now move for partial summary judgment
`
`seeking judgment in their favor on Counts I and III.
`
`DISCUSSION
`
`I.
`
`Legal Standard
`
`Summary judgment is appropriate if the “movant shows that there is no genuine
`
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
`
`Fed. R. Civ. P. 56(a). Courts must view the evidence, and the inferences that may be
`
`reasonably drawn from the evidence, in the light most favorable to the nonmoving party.
`
`Weitz Co., LLC v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009). However,
`
`“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
`
`shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
`
`
`4
`Defendants do not move for summary judgment on Count II, which is brought
`against Defendants NCT, Mulcrone, and dataBridge, for copyright infringement based on
`the alleged creation of a derivative of Scanning Enabler. (CAC ¶¶ 151-64.)
`
`
`
`5
`
`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 6 of 14
`
`‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
`
`Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
`
`
`
`The moving party bears the burden of showing that there is no genuine issue of
`
`material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna
`
`Bank, 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must demonstrate the
`
`existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cty.
`
`of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported
`
`motion for summary judgment “may not rest upon the mere allegations or denials of his
`
`pleading, but must set forth specific facts showing that there is a genuine issue for trial.”
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
`
`II.
`
`Count I – Copyright Infringement
`
`
`
`In Count I, Haddley asserts that Defendants infringed his copyright in the
`
`Scanning Enabler software by making copies available to unlicensed parties who then
`
`downloaded the software. Specifically, Haddley argues that only Clay and Steele
`
`Counties were licensed to load Scanning Enabler on their licensed servers and that the
`
`connection of each server or workstation from the other six counties constitutes
`
`infringement. Haddley submits that Clay and Steele counties contributed to that
`
`infringement by allowing the other counties access, and that NCT and Mulcrone
`
`contributed to the infringement of all County Defendants.
`
`Defendants argue that they are entitled to summary judgment on Haddley’s
`
`copyright infringement claim because the operative software licenses were unrestricted
`
`and, therefore, did not limit the number and identities of servers and workstations that
`
`
`
`6
`
`

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`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 7 of 14
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`could connect to the Clay and Steele County servers. In addition, Defendants argue that
`
`Haddley knew that NCT installed the software on the County Defendant servers and that
`
`Haddley personally helped in setting up the server-sharing arrangement amongst the
`
`counties. Defendants submit that Haddley’s active participation in the installation plus
`
`his silence ratified the server-sharing arrangement.
`
`At the heart of Defendants’ motion is the assertion that, as a matter of law, they
`
`were licensed to use the Scanning Enabler software. An express license is a basis for
`
`finding non-infringement. See, e.g., Sony Corp of Am. v. Universal City Studios, Inc.,
`
`464 U.S. 417, 433 (1984) (“[A]nyone who is authorized by the copyright owner to use
`
`the copyrighted work . . . is not an infringer of the copyright with respect to such use.”);
`
`Computer Assocs. Int’l, Inc. v. State Street Bank & Trust, 789 F. Supp. 470, 472 (D.
`
`Mass. 1992) (“A use of an authorized copy of copyrighted subject matter ordinarily is not
`
`infringing.”). The parties dispute the following issues that are relevant to Haddley’s
`
`copyright infringement claim: whether NCT acquired a license to Scanning Enabler (as
`
`opposed to Clay and Steele Counties), which particular agreement(s) governed the
`
`parties’ use of the software, and whether any license authorized the installation of
`
`Scanning Enabler on servers (and connecting workstations) beyond the servers and
`
`workstations of Clay and Steele Counties.
`
`The Court first turns to the issue of who was the licensee of the Scanning Enabler
`
`software and the related issue of which agreement governs. In support of their motion for
`
`summary judgment, Defendants claim that the licenses were sold to NCT, and not to Clay
`
`and Steele Counties. In support, Defendants point to invoices addressed to “The
`
`
`
`7
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`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 8 of 14
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`Mulcrone Group”—NCT’s former name. (Mulcrone Decl. ¶¶ 8, 9, Exs. 7, 8.) While
`
`these invoices suggest that NCT held the licenses for Scanning Enabler and that software
`
`license agreements governed, Haddley points to conflicting evidence, namely that
`
`Mulcrone believed that the operative license agreement could be one posted on the DBD
`
`website. (Doc. No. 147 (“Farrell Decl. II”) ¶ 2, Ex. A (“Scanning Enabler 4.x Software
`
`License Agreement”); id. ¶ 3, Ex. B at 12-13.) The Scanning Enabler 4.x Software
`
`License Agreement notes that it would bind the software developer and the “user,” and
`
`Haddley argues that the County Defendants, and not NCT, are the users of the software.
`
`In addition, Haddley argues that NCT was actually operating under the re-seller
`
`agreement and his Employment Agreement with NCT and that under those agreements
`
`Haddley retained ownership of his software. (See Farrell Decl. ¶ 5, Ex. D.)
`
`Second, Defendants argue that the licenses for Scanning Enabler were not limited
`
`to any number of workstations or to workstations owned by Clay and Steele County.
`
`Therefore, Defendants argue that they could permissibly share the Scanning Enabler
`
`licenses between multiple counties and their workstations. In support, Defendants again
`
`point to License Keys and invoices that state that the licenses were “unrestricted” for
`
`“one front-end server.” (Mulcrone Decl.¶¶ 6, 7, 8, 9, Exs. 5, 6, 7, 8.) Haddley, however,
`
`disputes that the licenses were “unrestricted” so as to allow the additional counties (and
`
`their corresponding workstations) to download Scanning Enabler. Instead, Haddley
`
`argues that the licenses prohibited the connection of additional servers at other counties
`
`and that his expectation was that NCT would assign the licenses to additional counties.
`
`(Haddley Dep. at 58.) For example, Haddley asserts that he did not grant unrestricted
`
`
`
`8
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`

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`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 9 of 14
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`licenses and that the licenses were for a single user. (Doc. No. 117 (“Haddley Decl.”)
`
`¶ 12.) Haddley maintains that he always granted Scanning Enabler licenses on a
`
`per-customer/per-server basis and points to evidence that this type of license
`
`(per-customer/per-server) is customary in the industry. (Farrell Decl. II ¶ 4, Ex. C at
`
`¶ 54.) Moreover, Haddley points to evidence that the Scanning Enabler license found on
`
`the DBD website--the Scanning Enabler 4.x Software License Agreement--states that the
`
`licensee may not “duplicate . . . license or sublicense” the Scanning Enabler Software.
`
`(Farrel Decl. II ¶ 2, Ex. A at 2.)
`
`After a careful review of the record, and viewing the evidence in the light most
`
`favorable to Haddley, the Court concludes that numerous questions of fact exist as to all
`
`of the above issues. It will be up to a fact-finder to determine the fact issues underlying
`
`whether NCT acquired a license to Scanning Enabler, which particular agreement(s)
`
`governed, and whether the relevant licenses were unrestricted such that they allowed
`
`multiple counties to share the Scanning Enabler software on the Clay and Steele County
`
`servers.
`
`Defendants also argue that Haddley granted Defendants an implied license to
`
`Scanning Enabler or that he should be estopped from denying the existence of an implied
`
`license. Defendants point to evidence that Haddley worked with NCT to install
`
`CaseWorks and to link the production servers to workstations in other counties, Haddley
`
`knew that the County Defendants were sharing servers, and until October 2014 (one year
`
`after the last CaseWorks installation), Haddley acquiesced. Moreover, Defendants point
`
`out that in 2012 and 2013, Haddley communicated with NCT and NCT’s customers,
`
`
`
`9
`
`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 10 of 14
`
`made no demands for separate licenses, and never objected to the installation of Scanning
`
`Enabler or the ActiveX controls. Defendants also submit that Haddley issued new
`
`licenses to NCT for the Steele County server when he was fully aware of the
`
`server-sharing involving the Clay County server, and that Haddley personally connected
`
`workstations from other counties to the Steele County server. Defendants assert that
`
`Haddley’s conduct left Defendants with the impression that they could rightfully share
`
`access to Scanning Enabler as part of CaseWorks.
`
`Haddley disputes that he knew of and ignored Defendants’ alleged infringement.
`
`Instead, Haddley submits that he understood that the additional counties would need to
`
`acquire their own licenses for Scanning Enabler. In addition, Haddley testified that NCT
`
`assured Haddley that each license would only be used by the individual licensed counties.
`
`(Haddley Dep. at 131-33.) Moreover, Haddley claims that he relied on NCT, as a
`
`re-seller, to collect money from counties using Scanning Enabler. (Farrell Decl. II ¶ 5,
`
`Ex. D (“Haddley 2018 Dep.”) at 44-45.) Haddley also disputes that, in his role at NCT,
`
`he was in a position to know which counties were using Scanning Enabler as part of
`
`CaseWorks and that he did not implement any client engagements. (Id. at 84, 87-88.)
`
`Haddley also submits that he repeatedly objected to the non-licensed use of the software
`
`and that, ultimately, he was terminated because of his objection. Haddley points to
`
`evidence that he specifically challenged the server and license sharing configuration
`
`when he was on-site in Fergus Falls in December 2012, and that he sent letters to each of
`
`the counties after his termination to challenge the unauthorized copying of the software.
`
`
`
`10
`
`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 11 of 14
`
`A non-exclusive implied license can arise based on the copyright holder’s implied
`
`consent. See Pinkham v. Sara Lee Corp., 983 F.2d 824, 831 (8th Cir. 1992); Parker v.
`
`Yahoo!, Inc., Civ. No. 07-2757, 2008 WL 4410095, at *3 (E.D. Pa. Sept. 25, 2008)
`
`(noting that a copyright owner may grant a non-exclusive license expressly or impliedly
`
`through conduct). Such conduct might include silence or lack of objection, especially if
`
`the copyright holder knows of and encouraged the allegedly infringing use. Parker, 2008
`
`WL 4410095, at *3. Similarly, “[a] Plaintiff is estopped from asserting a copyright claim
`
`if he has aided the defendant in infringing or otherwise induced it to infringe or has
`
`committed covert acts such as holding out . . . by silence or inaction.” Rouse v. Walter &
`
`Assocs., 513 F. Supp. 2d 1041, 1067-68 (S.D. Iowa 2007) (citation omitted).
`
`Here, viewing the evidence in the light most favorable to Haddley, the Court
`
`concludes that there are fact issues that preclude summary judgment on the issue of
`
`implied consent. In particular, a reasonable juror could conclude that Haddley did not
`
`impliedly consent to the allegedly infringing use of the software. For that same reason,
`
`fact issues also exist to preclude summary judgment on the issue of whether Haddley is
`
`estopped from denying the existence of an implied license.
`
`III. DMCA Claim
`
`In Count III, Haddley asserts a claim of copyright management circumvention
`
`against Defendants, alleging that in order to download Scanning Enabler, a licensee must
`
`have a valid license key and that Defendants NCT and Mulcrone acted in concert with
`
`County Defendants to bypass the license key system allowing the distribution of
`
`unauthorized copies of Scanning Enabler. (CAC ¶¶ 165-175.) Haddley asserts that
`
`
`
`11
`
`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 12 of 14
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`Defendants violated the DMCA by allowing eight separate counties to connect to
`
`workstations to two host production servers. (Id.)
`
`Defendants argue that this claim should be dismissed because each time one of the
`
`County Defendants connected to a workstation, it had the authority to do so via NCT’s
`
`licenses. In addition, Defendants argue that the fact that Haddley himself assisted in
`
`connecting the servers demonstrates that they had authority to use Scanning Enabler.
`
`Finally, Defendants argue that under the anti-circumvention provision of the DMCA,
`
`Haddley was required to have applied a technological measure to prevent unauthorized
`
`access. Defendants submit that they did not take any unauthorized technological steps to
`
`gain unauthorized access to Scanning Enabler, but rather that they used the ActiveX
`
`control to connect the workstations to the licensed servers and that they had Haddley’s
`
`authority to do so. More specifically, Defendants submit that using ActiveX control is
`
`not a technological step under the DMCA because ActiveX is designed to provide, not
`
`prevent, access as a prerequisite step to use the Scanning Enabler software.
`
`Under the DMCA’s anti-circumvention provision, “[n]o person shall circumvent a
`
`technological measure that effectively controls access to a [copyrighted] work.”
`
`17 U.S.C. § 1201(a)(1)(A). Circumvention means “to descramble a scrambled work, to
`
`decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a
`
`technological measure, without the authority of the copyright owner.” Id.
`
`§ 1201(a)(3)(A). A “technological measure” is one that “‘effectively controls access to a
`
`work’ if the measure, in the ordinary course of its operation, requires the application of
`
`information, or a process or a treatment, with the authority of the copyright owner, to
`
`
`
`12
`
`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 13 of 14
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`gain access to the work.” Id. § 1201(a)(3)(B). The DMCA’s anti-circumvention
`
`provisions provide property owners new grounds for liability in the context of
`
`unauthorized access of copyrighted material. Chamberlain Grp., Inc. v. Skylink Techs.,
`
`Inc., 381 F.3d 1178, 1194 (Fed. Cir. 2004). The statute requires plaintiffs to prove
`
`circumvention of technological measures controlling access to copyrighted work and lack
`
`of authority of the copyright owner. Id. (citing 17 U.S.C. § 1201). Here, the Court has
`
`already determined that fact issues remain with respect to the question of whether
`
`Defendants were authorized (via a license) to use the Scanning Enabler software. In
`
`addition, the Court concludes that fact issues remain as to whether any of the Defendants
`
`circumvented technological measures controlling access to Scanning Enabler. Without
`
`authority under a license, a reasonable juror could find that Defendants circumvented a
`
`technological measure to use Scanning Enabler by using the license key system.
`
`Therefore, summary judgment is denied as to Count III.
`
`IV. County Defendants
`
`Defendants also argue that the County Defendants are entitled to summary
`
`judgment because they did not act volitionally. In particular, Defendants assert that
`
`County Defendants were not aware that Scanning Enabler existed separately from the
`
`CaseWorks software, the product that NCT licensed to County Defendants. Defendants
`
`assert that NCT is the party that included Scanning Enabler in the CaseWorks product,
`
`Clay and Steele Counties are simply hosts of the licensed software, the remaining County
`
`Defendants accessed the hosts and enabled the scan by downloading the ActiveX
`
`
`
`13
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`

`

`CASE 0:16-cv-01960-DWF-LIB Document 196 Filed 09/26/18 Page 14 of 14
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`controller, and NCT controlled the installation of CaseWorks at Clay and Steele Counties
`
`during the period that Scanning Enabler was used.
`
`Haddley points out that he does not allege that Clay and Steel Counties’ systems
`
`were unknowingly used to make copies of Scanning Enabler without the counties’
`
`consent. Instead, Haddley claims that Clay and Steele Counties knew of and had control
`
`over what software was on their system and allowed other unlicensed counties to share
`
`their software. In addition, Haddley claims that the alleged unlicensed counties then
`
`created additional unlicensed copies on their own systems.
`
`The Court concludes that, on the record before it, it is premature to dismiss the
`
`County Defendants. There are still open factual questions over whether the County
`
`Defendants could use the software under a license. And if it is later determined that their
`
`use was not licensed, fact issues remain as to whether their use of Scanning Enabler was
`
`outside their knowledge or control.
`
`ORDER
`
`Based upon the foregoing, IT IS HEREBY ORDERED:
`
`1.
`
`Defendants’ Motion for Partial Summary Judgment (Doc. No. [103]) is
`
`DENIED.
`
`Dated: September 26, 2018
`
`
`
`s/Donovan W. Frank
`DONOVAN W. FRANK
`United States District Judge
`
`
`
`14
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`

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