Fifth Circuit Defines "Access" for DMCA Circumvention Claim
MGE sued Power Maintenance International, Inc. and GE ("GE/PMI") for, among other things, violations of the Digital Millennium Copyright Act in connection with MGE's uninterruptible power supply machines ("UPS") and MGE's copyrighted software used on those machines.
As to MGE's DMCA claim, MGE's UPS machines require use of MGE's copyrighted software to complete full servicing of the machines. MGE instituted security measures related to use of its software, succinctly described by the Fifth Circuit:
The software requires connection of an external hardware security key (called a "dongle") to the laptop serial port. Each dongle has an expiration date, a maximum number of uses, and a unique password. When the software is activated, it searches for a properly programmed dongle before it will fully launch. Once launched, the software will go through a second series of protocol exchanges with the data located on the UPS machine's microprocessors to confirm that MGE software is communicating with MGE hardware. If the protocol exchange is successful, MGE's software proceeds to collect system status information for the technician.
After MGE introduced the security technology, hackers published information on the Internet disclosing how to defeat the security features of a hardware key. Once that key is defeated, the software can be accessed and used without limitation. GE/PMI apparently admitted that it recovered a laptop that contained hacked MGE software and had used the software in five instances.
During an off-record jury charge conference, the District Court dismissed MGE's DMCA claim and MGE appealed that decision, among others.
But the Fifth Circuit affirmed the dismissal of the DMCA claim, concluding that MGE had not shown that GE/PMI circumvented MGE's software protections in violation of the act. Specifically, the Fifth Circuit found that MGE had not shown that bypassing its "dongle" infringed a right protected by the Copyright Act, which is the type of "access" the DMCA was intended to reach. The Fifth Circuit concluded that the DMCA required that 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." MGE's "dongle" only prevented initial access to the software rather than protecting against copyright violations and therefore circumventing the "dongle" did not give rise to a DMCA claim.
The case cite is MGE UPS Systems Inc. v. GE Consumer & Indus. Inc., No. 08-10521 (5th Cir. July 20, 2010).
