[Infowarrior] - Court: Bypassing Dongles Not a DMCA Violation

[Richard Forno]

http://www.courthousenews.com/2010/07/23/29099.htm

Friday, July 23, 2010Last Update: 10:57 AM PT

Court Backs Dismissal of Digital Copyright Claim


     (CN) - General Electric did not infringe on a power supplier's digital copyrights when it used protected software unlocked through a hacked security key, the 5th Circuit ruled.
     "Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act's) anti-circumvention provision," Judge Garza wrote for the New Orleans-based court.
     "The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."
     The ruling stems from a lawsuit filed by MGE UPS Systems, a manufacturer of uninterruptible power supply machines used by companies like Power Maintenance International (PMI), which was bought by GE in 2001.
     To fix the machines, technicians have to use MGE's copyrighted software programs. The software can be unlocked with an external hardware security key, called a "dongle."
     Dongles have expiration dates, passwords and a maximum number of uses.
     Years after MGE introduced this technology, hackers posted information online on how to bypass the hardware key. Once a key is cracked, the software can be freely used and copied.
     In its lawsuit against GE and PMI, MGE claimed a group of PMI employees had at least one copy of software obtained from a hacked machine. It said GE used the software 428 times between June 2000 and May 2002, even after a judge barred GE from using MGE's software and trade secrets.
     A jury awarded MGE more than $4.6 million in damages for copyright infringement and misappropriation of trade secrets, but the trial judge dismissed its Digital Millennium Copyright Act claim.
     MGE appealed, arguing that its dongles barred the kind of access to its software that the Act is meant to prevent.
     But the 5th Circuit said MGE "advances too broad a definition of 'access.'"
     "Without showing a link between 'access' and 'protection' of the copyrighted work, the DMCA's anti-circumvention provision does not apply," Judge Emilio Garza wrote. 
     "The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing."