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

Mike Masnick — Mon, 26 Jul 2010 15:40:57 PDT

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.

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