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| Chilling Effects Clearinghouse > Anticircumvention (DMCA) > Weather Reports > Federal Circuit ruling allows repair and maintenance of machines under Copyright Act and DMCA | 
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|  Federal Circuit ruling allows repair and maintenance of machines under Copyright Act and DMCATara Wheatland, Samuelson Law, Technology, and Public Policy Clinic, September 02, 2005 Abstract: Last week, in Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 2005 U.S. App. LEXIS 18131 (Fed. Cir. 2005), the Federal Circuit held that under 17 U.S.C. § 117(c), a third party may lawfully repair machinery running copyrighted software owned by another company, and that a claim under DMCA § 1201(a)(1)(A), prohibiting the circumvention of access controls, can not be brought if the underlying repair and maintenance conduct does not constitute copyright infringement. In this case, because the hardware repair company did not engage in copyright infringement, they also cannot be liable for a violation of the DMCA. Last week, in Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 2005 U.S. App. LEXIS 18131 (Fed. Cir. 2005), the Federal Circuit held that under 17 U.S.C. § 117(c), a third party may lawfully repair machinery running copyrighted software owned by another company, and that a claim under DMCA § 1201(a)(1)(A), prohibiting the circumvention of access controls, can not be brought if the underlying repair and maintenance conduct does not constitute copyright infringement. In this case, because the hardware repair company did not engage in copyright infringement, they also cannot be liable for a violation of the DMCA. StorageTek, a manufacturer of automated tape cartridge data storage libraries, sued Custom Hardware Engineering & Consulting (CHE), a computer repair and maintenance company that services storage libraries made by StorageTek. StorageTek alleged, among other things, that CHE violated copyright law and the DMCA in the course of performing service on StorageTek products. StorageTek alleged copyright protection in a piece of software, referred to as the "maintenance code," which diagnoses malfunctions in the library and delivers error messages reporting those malfunctions. In the course of servicing owners' libraries, CHE rebooted the machines, and used special software tools to "crack" the password system, called GetKey, that nornally prevents access to the maintenance code and the error messages it generates. StorageTek claimed that when CHE rebooted owners' tape libraries, it infringed StorageTek's copyrights in the maintance code because the code was copied into the machine's random access memory (RAM). StorageTek also claimed that the software tools employed by CHE to "crack" GetKey constituted a violation of DMCA § 1201(a)(1)(A), prohibiting the circumvention of technological measures that control access to works. A lower court held that StorageTek was likely to succeed on its copyright infringement and DMCA claims, and that the risk of harm to StorageTek was sufficient, and issued a preliminary injunction aginst CHE, instructing them that they must not circumvent the GetKey system or cause copying of the maintenance code on owners' systems. The Federal Circuit court of appeals reversed, holding that StorageTek was not likely to succeed on either its claim of copyright infringement or its claim of DMCA violation. The court held that CHE was likely to prevail on both of its arguments against liability for copyright infringement. First, CHE was likely to prevail in its argument that it did not infringe StorageTek's copyrights because CHE was acting with permission of the owners of the equipment, and thus its actions were simply not prohibited by copyright law. (The court noted that CHE's actions might have been prohibited by the machine owners' license agreements, but no breach of contract claims were raised.) Additionally, CHE was likely to be determined to qualify for a defense to copyright infringement under 17 U.S.C. § 117(c). This section allows companies to engage in limited copying of a computer program during the course of repair or maintenance of a machine. After holding that StorageTek was not likely to succeed in its claims of copyright infringement, the court further held that its DMCA claim was barred. StorageTek claimed that CHE's circumvention of GetKey's password protections violated DMCA § 1201(a)(1)(A), prohibiting circumvention of access controls. In barring such a claim in this case, the court cited a 2004 decision of the Federal Circuit in Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004), which held that § 1201(a) "prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners." So, to the extent that CHE did not infringe StorageTek's copyrights (because any copying was either not infringement, or permitted under the repair/maintenance exception mentioned above) the circumvention of technological measures controlling access to StorageTek's works is not prohibited, and "StorageTek is foreclosed from maintaining an action under the DMCA." As some have noted, the Federal Circuit's clear elucidation of this prinicple is good news for the public interest generally, and for the software servicing market specifically. Such a rule will facilitate the open access of information and prohibit parties from misusing the provisions of the DMCA to prohibit activities that are not prohibited by copyright law. In this particular case, it has prevented StorageTek from engaging in the anti-competitive behavior of attempting to shut down.
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