MESSAGE
| DATE | 2010-10-18 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [NYLXS - HANGOUT] DMCA News
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http://copyfight.corante.com/archives/2010/07/26/dmca_dongles_and_breaking_drm.php
er the weekend both Slashdot and Boingboing pointed to a story about GE
and the DMCA. Formally, the case is known as MGE UPS Systems Inc. v. GE
Consumer and Industrial Inc. What drew the blogs' attention was that in
this case a 3-judge panel of the 5th circuit has ruled that using a
hacked security key to get access to a work is not itself a violation of
the DMCA. That's a pretty surprising outcome since it runs counter to
the way the DMCA has generally been interpreted.
On the face of it, contrary interpretations of a law are usually a good
reason for the Supreme Court to grant cert, reviewing the case(s) and
the law on which the Circuits disagree. For that to happen, the ruling
would have to be appealed to the 5th en ban and if upheld at that level
could then be appealed to SCOTUS. So there's still a ways to go on that
front.
The decision seems to hinge in part on a distinction between access and
copying. In particular, GE claims that the dongle it cracked didn't stop
copying from happening - it just blocked access. The 5th definitely
agreed that GE was enjoined from copying or using illegally copied
software and trade secrets; GE did not contest that the software was a
copyrighted work, and the fine against it was upheld. But the Circuit
panel found that the original decision for MGE was in error because it
accepted too broad a meaning of "access". The key sentence highlighted
in the Courthouse News report is this:
"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."
That's extremely significant because, as Cory noted in his post, legal
access and viewing is something that one might want to do in, say, one's
own home with one's own material but cannot do because of DRM locks that
are applied by DVD makers, iPad software, or any number of audio-book
publishers.
It will be interesting to see where this case goes. Given that the
monetary damages against GE were upheld, MGE has little motive to appeal
in defense of an abstract principle of law.
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