Page:Fair Circumvention.djvu/26

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26
[Vol. 74:1
BROOKLYN LAW REVIEW

startup.[1] In the event of a maintenance problem, the software was designed to transmit coded error messages describing the symptoms of the problem only if supplied with a valid password.[2] Custom Hardware Engineering (“CHE”) was a competitor of StorageTek’s in the aftermarket for technical service and maintenance of StorageTek’s products. To access the maintenance error codes on tape libraries manufactured by StorageTek, CHE designed two devices to circumvent StorageTek’s password protection system.[3] Doing so enabled CHE to diagnose and repair problems with tape libraries manufactured by StorageTek.[4] StorageTek sued, alleging both copyright infringement and violation of the DMCA. It alleged that, by causing StorageTek’s customers’ tape libraries to transmit coded error messages, CHE had circumvented its password authentication mechanism and thereby gained access to (and created an unauthorized copy of) StorageTek’s copyrighted maintenance software.[5]

The court rejected StorageTek’s copyright claims, finding CHE’s activities protected by a statutory safe harbor for copies necessarily made in the course of maintenance or repair of a computer.[6] The failure of StorageTek’s claims for copyright infringement, the court then continued, was all but dispositive of its claims under the DMCA. The court reasoned, citing Chamberlain, that:

To the extent that CHE’s activities do not constitute copyright infringement or

facilitate copyright infringement, StorageTek is foreclosed from maintaining an action under the DMCA. That result follows because the DMCA must be read in the context of the Copyright Act, which balances the rights of the copyright

owner against the public’s interest in having appropriate access to the work.

  1. See id. at 1309-10. Strangely, StorageTek did not license the code to its own customers, necessarily (if paradoxically) implying that every customer infringed StorageTek’s copyright in the code each time they turned their purchased hardware on. See id. at 1310 (noting that, although “StorageTek provides the entire [software] code to the customer,” the accompanying “license covers only . . . portions of the software, and it specifically excludes the maintenance code”). Most likely, StorageTek was attempting to avoid—unsuccessfully, as it turned out, see id. at 1311-15—the application of 17 U.S.C. § 117(c), which allows copying of “an authorized copy of [a] computer program . . . for purposes . . . of maintenance or repair . . . .” 17 U.S.C. § 117(c) (2006) (emphasis added). The copies of the maintenance software StorageTek had installed on its own customers’ machines were, by the terms of its own license, unauthorized copies. StorageTek’s apparent adversarial attitude towards its own customers surely heightened the court’s skepticism towards StorageTek’s interpretation of the DMCA.
  2. See Storage Tech., 421 F.3d at 1310. Presumably, StorageTek’s intention in adopting this password authentication mechanism was effectively to prevent its customers or competitors from performing their own maintenance on StorageTek’s tape libraries.
  3. See id. As the court described it, CHE’s two devices worked somewhat differently—one by computing a valid password for StorageTek’s system, the other apparently by preventing the system from requesting a password at all—but the differences are immaterial for present purposes.
  4. Id.
  5. See id.
  6. Id. at 1311-15; see also Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc., 431 F.3d 1374, 1375-76 (Fed. Cir. 2005) (opinion on denial of rehearing) (reiterating court’s conclusion that safe harbor of 17 U.S.C. § 117(c) covered CHE’s activities). The copyright safe harbor provision on which the court relied was itself enacted in 1998 as part of the DMCA. See infra note 174.