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DMCA, Dongles, and Breaking DRM

By Posted by Alan Wexelblat

Over 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 Consumser 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.

Full post as published by Copyfight - The Politics of IP on July 26, 2010 (boomark / email).