The Courthouse News Service reports on an appeals court case that, if it stands, has the potential to redefine the way the Digital Millennium Copyright Act is interpreted in regard to intellectual property.

MGE UPS Systems, a manufacturer of uninterrupted power supplies, brought suit against GE for using a hacked hardware “dongle”, a device that plugs into a computer to authorize use of software, to access MGE software it needed to use to repair UPSes. The lower court judge dismissed MGE’s DMCA case against GE, and the 5th circuit appeals court upheld the decision.

On page 6 of the actual ruling (16-page PDF file), Judge Emilio M. Garza writes (emphasis mine):

However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision.

This is exactly the opposite of the way the DMCA has been enforced up to this point. Until this ruling, the DMCA has been applied to breaking Digital Rights Management (DRM) for any purpose (save for tri-annual exemptions), no matter how laudable. At DMCA exemption hearings, RIAA attorneys have insisted that professors should camcord clips off the TV screen rather than being permitted to break DRM to use them educationally.

If I’m reading this right—I’m certainly not a lawyer, after all—and a higher court doesn’t toss this ruling out, it could very well become explicitly legal to break DRM for the purpose of making “fair use” of media you already own—ripping your DVDs to play on your iPad, or breaking DRM to read your Mobipocket book on your iPhone. The DMCA would be effectively defanged.

(Except that even if breaking the DRM was legal, you could very well still be sued for doing it, and would have to prove in court that your use was fair. But at least you’d have a much better precedent on your side.)


  1. The quote that I though was most interesting, “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.”

    So if viewing the protected document can be done without violating the copyright, you can break the DRM. That’s how I read it. It’s what you do with it _after_ you hack the DRM that matters.

    This doesn’t grant anyone the right to copy the work in any form to anyone else or to where anyone else might access it. That would violate copyright. But I can’t see any reason you couldn’t hack the protection to store your own backup, or read it on a different device, since that’s what you paid for.

    DVD backup guys have been working by this rule for a decade.

  2. I’m not a lawyer either, but I think that the decision in this case is more narrow. My understanding is that the DMCA claim would have been upheld if the software had been encrypted and the dongle was essential to decrypting the software. In this case, the software was “in the clear” and the dongle’s only purpose was to allow the software to be run.

    The decision does mention fair use and says that the DMCA wasn’t intended to prohibit end users from exercising any rights that they already have under Copyright law, which is much broader than the encryption issue, so it will be interesting to see how this decision is interpreted by courts in the future.

  3. Yeah, it’s pretty obvious you are not a lawyer.

    You’re *completely misrepresenting* the judge’s decision, which had nothing to do with fair-use and was, ultimately, based on the fact that MGE had not encrypted their program and couldn’t demonstrate that the cracking had actually been performed by GE.

    The throw-away line about fair-use in an encouraging sign, but it has no relevance to the actual case and has absolutely no value as a precedent. It’s not helped by the fact that the judge’s reasoning concerning technological measures for protection is both naive and sloppy.

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