Court Says Using Software Others Modified To Circumvent DRM Doesn't Violate DMCA's Anti-Circumvention Directly

from the mostly-good-news dept

One of the worst parts of the DMCA, of course, is the anti-circumvention clause, which is way too broad, and can make breaking a digital lock for perfectly non-infringing uses against the law. It also opened up the possibility of using pointless digital locks to try to lock users into certain hardware or software choices in an anti-competitive fashion. Thankfully, courts have rejected many of these attempts -- such as with garage door openers, third party repair service contracts and printer cartridges -- all of which were attempts to use copyright to stifle competition, not as an incentive to create. It looks like we've got another one to add to the list, though, like those previous rulings, the more ridiculous aspects of the anti-circumvention rules means that the court has to twist itself into painful contortions to make the ruling it wanted.

In this case, it involved uninterruptible power supply (UPS) offerings from a company named MGE, which required a hardware dongle and some software to handle repairs. Another company, PMI (acquired by GE), apparently found a way around using the dongle by using some unauthorized software. The question (one of a few, but the key one for this discussion) was whether or not routing around the dongle was infringing itself -- and the court found it did not, though did so in a convoluted way. First, it noted that bypassing the dongle doesn't actually lead to any unauthorized copying, and thus there's no copyright violations. Because of that, it finds no DMCA violation, since the dongle didn't serve to protect copyrighted material from being infringed.

The court also went further, and suggested that simply using already available software to get around a digital lock might not be infringing itself. In other words, it suggests that only those who modify software to get around a digital lock may have violated the anti-circumvention clause. This could be a really big deal if other courts recognize this (or, if this case is appealed and it holds up).
Moreover, the DMCA's anti-circumvention provision does not apply to the use of copyrighted works after the technological measure has been circumvented, targeting instead the circumvention itself.... MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim....
This doesn't mean, of course, that as long as someone else breaks the lock, you're home free. If you are still violating copyright, there are still serious consequences, and there may still be other issues. Also, this ruling only applies in the Fifth Circuit. However, it is an interesting ruling, and yet another one that pushes back on a company trying to abuse the DMCA's anti-circumvention clause for anti-competitive purposes.


Reader Comments (rss)

(Flattened / Threaded)

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    crade (profile), Jul 26th, 2010 @ 3:57pm

    I would argue that creating the circumvention software doesn't actually circumvent the lock but merely provides the user with the ability to do so. It is more clear if the crack and the application are kept seperate until the user runs them, but not fundamentally different if they are combined before the user runs them.

     

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    Roc, Jul 26th, 2010 @ 4:08pm

    heh

    Funny when you consider how much GE spends on lobbying for DRM...

     

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    Anonymous Coward, Jul 26th, 2010 @ 4:32pm

    "Court Says Using Software Others Modified To Circumvent DRM Doesn't Violate DMCA's Anti-Circumvention Directly"

    Expect a bunch of bought politicians to condemn the courts decision and propose new laws.

     

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    Anonymous Coward, Jul 26th, 2010 @ 4:34pm

    This ruling sounds like it could have been of use to Psystar.

     

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    Karl (profile), Jul 26th, 2010 @ 4:57pm

    Circumvention vs. infringement

    I know that the anti-circumvention laws are part of copyright law, but is circumvention actually considered infringement, or something else altogether?

    I thought they were separate. If they were the same, then fair use exceptions should have applied to circumvention as well, and they weren't.

    Then again, it seems like fair use should have been an exception to circumvention law, if you go by the letter of 1201(c)(1). So, I'm a bit confused why it's not.

    ...Still, this is all good news.

     

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      Anonymous Coward, Jul 26th, 2010 @ 5:33pm

      Re: Circumvention vs. infringement

      "I know that the anti-circumvention laws are part of copyright law, but is circumvention actually considered infringement, or something else altogether?"

      Not part of copyright law, part of the DMCA law.

      "I thought they were separate. If they were the same, then fair use exceptions should have applied to circumvention as well, and they weren't."

      Should be, but arent (werent). You essentially had 2 laws that interfere with each other, but apparently the anti-circumvention law trumps fair use. Why that is, I dont know, but it ALWAYS take precedence, putting a private right (anti-circumvention of DRM) ahead of the public's right (fair use).

      "Then again, it seems like fair use should have been an exception to circumvention law, if you go by the letter of 1201(c)(1). So, I'm a bit confused why it's not."

      Because Big Media paid good money to buy the right lawmakers to make it so.

       

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    NAMELESS.ONE, Jul 27th, 2010 @ 5:56am

    anyone get the feeling of late that ACTA won't pass

    THUS the usa is rethinking the HARD LINE on copyright?
    ya might consider that if the EU rejects acta and even canada as i assume it will, you don't have enough of a treaty left to be with a grain of salt. THUS all the eggs buying off a usa president were for naught and i'll say it expensive and all the lawsuits a waste of time and money. In the end it just hastens the bankruptcy of a once great nation.

     

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    Anonymous Coward, Jul 27th, 2010 @ 6:35am

    I know for a fact that any software company that uses the dongle to protect it's product also has a software bypass that allows them to use their software without the dongle. I have worked personally for companies that employ dongles and using their software in-house is always dongle free. The dongle is a software controlled device and without the routine to control it, it becomes useless. Like any digital device, any lock can be unlocked.

     

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