Advanced Copyright Issues on the Internet - Fenwick & West LLP

circumvention of GetKey only allowed the defendants to use portions of the copyrightedsoftware that the plaintiff wished to restrict technologically, but that had already been loadedinto RAM. “The activation of the maintenance code may violate StorageTek’s contractual rightsvis-à-vis its customers, but those rights are not the rights protected by copyright law. There issimply not a sufficient nexus between the rights protected by copyright law and thecircumvention of the GetKey system.” 907 Accordingly, it was unlikely that the plaintiff wouldprevail on its anti-circumvention claim. 908 The court therefore vacated the preliminaryinjunction and remanded for further proceedings. 909Two significant aspects of the Storage Tech case are worth noting:– First, the court read the Section 117(c) rights very broadly. Section 117(c) was clearlydesigned to absolve maintenance providers from copyright liability based merely on the makingof a copy of a computer program by virtue of its getting loaded into RAM upon starting acomputer for maintenance. However, the Federal Circuit went further, and ruled that thedefendants were entitled to use, in aid of rendering maintenance, any software that got loadedinto RAM upon activation of the machine. Such a result seems in tension with Section117(c)(2), which provides that, “with respect to any computer program or part thereof that is notnecessary for the machine to be activated, such program or part thereof is not accessed or usedother than to make such new copy by virtue of the activation of the machine.” The reference to“part thereof” seems to contemplate that some code might get loaded upon machine activation,but yet not be necessary for the machine to be activated (in the way, for example, that operatingsystem software is necessary for a machine to be activated). In that event, Section 117(c)(1)absolves the maintenance provider from liability for the making of the copy of such code uponmachine activation, but Section 117(c)(2) would seem to prevent the maintenance provider fromaccessing or using such code “other than to make such new copy by virtue of the activation ofthe machine.”Notwithstanding this, the Federal Circuit’s decision gave the maintenance provider theright to access and use the Maintenance Code, just because it was loaded upon activation. Thecourt did so on the articulated basis that the Maintenance Code was “so entangled with thefunctional code that the entire code must be loaded into RAM for the machine to function atall.” 910 However, this factual assertion seems belied by the fact that, as noted by the districtcourt, the default setting for the Maintenance Code was level 0 (disabled), and it was designed torequire intervention by Storage Tech engineers through the GetKey process to activate it tohigher levels. Thus, although the Maintenance Code was loaded upon machine activation, itwould not seem necessary for the machine to activate (function), because it was by default set tobe disabled.907908909910Id. at 1319.Id.Id. at 1321.Id. at 1314.- 202 -