Advanced Copyright Issues on the Internet - Fenwick & West LLP

– Second, the court’s interpretation of the anti-circumvention provisions gives them anarrower scope than the literal language of the copyright statute seems to read. Specifically, thecourt ruled that those provisions do not create a new source of liability beyond copyrightinfringement. If a circumvention does not lead to a copyright infringement, the circumvention isnot illegal. In other words, the act of circumvention is not a malum in se. 911 This holding,whatever merit it might be argued to have as a policy matter, seems contrary to the literallanguage of Section 1201(a)(1)(A), which states “No person shall circumvent a technologicalmeasure that effectively controls access to a work protected under this title.” The FederalCircuit’s decision seems to add a clause at the end of this provision reading “and whichcircumvention results in copyright infringement.” As discussed in Section II.G.1(n)(1) above,the separate opinions of two of the judges in the Lexmark case expressed similar views aboutwhat the proper scope of the anti-circumvention prohibitions should be interpreted to be.On remand, StorageTek asserted an additional anti-circumvention claim against thedefendants, based on the defendants alleged circumvention of GetKey in order to access andcopy StorageTek’s Run Time Diagnostics (RTD) code, which diagnosed troubles in thehardware. Unlike the rest of the Maintenance Code, the RTD code was not automatically loadedupon power-up, but instead was loaded only when utilized. 912 The court rejected this claim onthe ground that GetKey did not effectively protect or control access to the RTD code. The RTDcode was contained on either the hard drive of the LMU or on floppy disks that StorageTeksometimes shipped with its products. Accordingly, any customer who owned a StorageTeksystem could access and copy the RTD code, regardless of the existence of GetKey protections.The court therefore concluded that GetKey did not effectively control access to the RTD code,and the court granted the defendants summary judgment on the anti-circumvention claim relatedto the RTD code. 913(b) Integrity of <strong>Copyright</strong> Management Information(1) Definition of CMIThe DMCA contains provisions directed to maintaining the integrity of “copyrightmanagement information” (CMI), which Section 1202(c) of the DCMA defines to include thefollowing items of information “conveyed” in connection with copies of a work or theperformance or display of a work, including in digital form (but specifically excluding anypersonally identifying information about a user of a work):– the title and other information identifying the work, including the information set forthon a copyright notice;– the name and other identifying information about the author or the copyright owner ofthe work;911912913Latin for “wrong in itself.”Storage Technology Corp. v. Custom Hardware Eng’g & Consulting, Ltd., 2006 U.S. Dist. LEXIS 43690 at*15, 22 (D. Mass. June 28, 2006).Id. at *25-26.- 203 -