Advanced Copyright Issues on the Internet - Fenwick & West LLP

and fix the malfunction. The Federal Circuit ruled that this ongoing presence to detect and repairmalfunctions fell within the definition of “maintenance” in Section 117(c). Moreover, when thedefendants’ maintenance contract was over, the storage library was rebooted, which destroyedthe Maintenance Code. The court noted that the protection of Section 117 does not cease simplyby virtue of the passage of time, but rather ceases only when maintenance ends. 901With respect to whether the Maintenance Code was necessary for the machine to beactivated, the Federal Circuit relied heavily on the fact that both parties agreed the MaintenanceCode was “so entangled with the functional code that the entire code must be loaded into RAMfor the machine to function at all.” 902 The fact that the Maintenance Code had other functions,such as diagnosing malfunctions in the equipment, was irrelevant. Accordingly, the defendantswere likely to prevail on their argument that Section 117(c) protected their act of copying of theplaintiff’s Maintenance Code into RAM. 903Turning to the anti-circumvention claim based on the defendants’ circumvention of theGetKey protocol, the court cited its earlier opinion in the Chamberlain case for the propositionthat a “copyright owner alleging a violation of section 1201(a) … must prove that thecircumvention of the technological measure either ‘infringes or facilitates infringing a rightprotected by the <strong>Copyright</strong> Act.’” 904 Thus, to the extent that the defendants’ activities did notconstitute copyright infringement or facilitate copyright infringement, the plaintiff wasforeclosed from maintaining an action under the DMCA. 905 Citing the Lexmark andRealNetworks v. Streambox cases, the court observed that “courts generally have found aviolation of the DMCA only when the alleged access was intertwined with a right protected bythe <strong>Copyright</strong> Act. … To the extent that StorageTek’s rights under copyright law are not at risk,the DMCA does not create a new source of liability.” 906Even if the plaintiff were able to prove that the automatic copying of the MaintenanceCode into RAM constituted copyright infringement, it would still have to show that the LEM orELEM (which bypassed GetKey) facilitated that infringement. With respect to that issue, thecourt noted the problem that the copying of the Maintenance Code into RAM took placeregardless of whether the LEM or ELEM was used. Thus, there was no nexus between anypossible infringement and the use of the LEM and ELEM circumvention devices. Rather, the901902903904905906Id. at 1313.Id. at 1314.Id. In the alternative, the court ruled that the defendants’ copying of the software into RAM was within thesoftware license rights of their customers because the defendants were acting as their customers’ agents inturning on the machines. Id. at 1315. “Because the whole purpose of the license is to allow the tape libraryowners to activate their machines without being liable for copyright infringement, such activity by the licenseeand its agents is implicitly authorized by the license agreement unless the agreement explicitly prohibits thirdparties from powering up the machines.” Id. at 1317.Id. at 1318 (quoting Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1203 (Fed. Cir.2004)).Storage Technology, 421 F.3d at 1318.Id.- 201 -