Monthly Archives: March 2014

The Computer Fraud and Abuse Act: Circuit Split and Efforts to Amend

The Ninth Circuit’s 2012 decision in United States v. Nosal created a circuit split regarding the interpretation of the phrase “exceeds authorized access” in the Computer Fraud and Abuse Act (CFAA).  The Ninth Circuit (since joined by the Fourth Circuit) held that one “exceeds authorized access” to a computer by violating an access restriction (e.g., do not access File X), but not by violating a use restriction (e.g., do not use the computer for non-business purposes).  This interpretation conflicts with the First, Fifth, Eighth, and Eleventh Circuits, which have held that use restrictions are within the scope of “exceeds authorized access.”

This post compares the Ninth Circuit’s access-only interpretation of the CFAA with the use-and-access interpretation, and suggests these two positions are not that different.  This post then discusses the alternative, code-based interpretation and recent efforts to amend the CFAA.

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Canada’s Approach to Intermediary Liability for Copyright Infringement: the Notice and Notice Procedure

In 2012, Canada adopted the Copyright Modernization Act as a comprehensive reform of Canadian copyright law and addressed the issue of liability for copyright infringement by online intermediaries. Rather than adopting a “Notice and Takedown” procedure like the United States did at § 512 of the Digital Millennium Copyright Act (DMCA), Canada’s new Copyright Act enacts a “Notice and Notice” procedure at §§ 41.25 and 41.26. Those provisions are not yet in force, but the Canadian Government announced in October 2013 that they would be in the “near future.”

This post describes the differences between the respective approaches of the United States and Canada, addresses their pros and cons, and discusses how the recently leaked Trans Pacific Partnership agreement may require a harmonized approach in the two countries.

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