Court Rules That Bypassing Dongle Is Not a DMCA Violation

tcrown007 sends along an appeals court ruling that, for once, limits the reach of the Digital Millennium Copyright Act's anti-circumvention clause. "MGE UPS makes UPS systems and software that are protected by hardware dongles. After the dongles expired, GE bypassed the dongles and continued to use the software. MGE sued, won, and has now lost on GE's appeal. Directly from the court's ruling (PDF): "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... 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.' Say what? I think I just saw a pig fly by."

Comments

If this precedent holds...

[JoshuaZ]

If this precedent holds we may be in very good shape. The obvious generalization is to allowing such circumvention for fair use. If that occurs, then most of the problems with this legislation go out the window.

Re:If this precedent holds...

[BradMajors]

I think as a whole it is a bad ruling.

The part where he ruled circumventing a Dongle to use software you are legally entitled to use is not illegal is good.

But, GE was illegally using software which it did not have the rights to use with of without the Dongle, which the judge said is OK. This part of his ruling is bad.

Re:If this precedent holds...

[arivanov]

All that the precedent does is that it sends a warning to people to stop frivolously mixing in DMCA into what should be covered by contract law. The dongle is a mere enforcer of the contract so unless someone at MGE was very very daft GE would be in violation of a contract.

So while the first impression is that a pig has taken off, a more close inspection is showing that it is continuing on a ballistic trajectory after someone gave it some initial thrust. Not really flying.

Re:If this precedent holds...

[Splab]

We wont know if the pig is flying until it continuesly fails to hit the ground.

Re:If this precedent holds...

[sangreal66]

I think as a whole it is a bad ruling.

The part where he ruled circumventing a Dongle to use software you are legally entitled to use is not illegal is good.

But, GE was illegally using software which it did not have the rights to use with of without the Dongle, which the judge said is OK. This part of his ruling is bad.

The judge did not say it was okay, only that MGE failed to provide sufficient proof of damages (they tried to claim damages against the total revenue of the division and not just revenue related to servicing MGE UPS products)

Re:If this precedent holds...

[Kristian T.]

Correct me if I'm wrong, but I think GE still have to pay for violating the copyright/contract. The DMCA claim got thrown out because a dongle is a use prevention rather than a copy prevention device. The software itself was probably copied without circumventing anything. MGE are probably saying: "Oh what the hell it was worth a shot" regarding the DMCA claim, but it was not the core of their case. Regarding precedent, ther's not much in it for Joe average with his DVD collection.

Re:If this precedent holds...

[Anonymous Coward]

Even if it never hits the ground it could still be orbiting, and that's not quite the same thing as flying either.

Re:If this precedent holds...

[martin-boundary]

For a sufficiently small planet, it is.

Re:If this precedent holds...

[PRMan]

I think this quote is a huge precedent...

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.

It means everything for Joe Average's DVD collection. He should have no problem putting it on a home server or a laptop, for instance, because he is not violating the Copyright Act by copying it for his own viewing/use.

Re:If this precedent holds...

[gnasher719]

f this precedent holds we may be in very good shape. The obvious generalization is to allowing such circumvention for fair use. If that occurs, then most of the problems with this legislation go out the window.

Just to clarify: I hold in my hands a DRM-"protected" DVD that I own. You stand besides me, and I could lend the CD to you. What things do you think "fair use" would allow me and you to do?

Re:If this precedent holds...

[dreadlord76]

It was such a surprise for the pig that it failed to remember gravity. Gravity took a look, tried to reach out, and then gave up, and focuses on things like fallen apples and making sure the next Pan Galactic Gargle Blaster arrives safely in the stomach, rather than attempting to escape through the 8 openings on the top of the Goran's head.

Re:If this precedent holds...

[rpresser]

It's still good! It's just a little airborne!

"It's gone, Dad."

I know ... I know ... *sob*

Re:If this precedent holds...

[sconeu]

Disclaimer: I am not a lawyer, nor do I play on on TV.

If the court ruled that a dongle is an anti-use device, rather than an anti-copying device, it seems to me that DeCSS might get cleared the same way.

Any legal types out there want to comment

Re:If this precedent holds...

[Unequivocal]

Wait - as far as I can tell that use is still a violation of copyright law, just not DMCA? So Joe Average is making a copy while his license on the DVD says no copying? Maybe that's better b/c DMCA is harsher on penalties than traditional copyright law?

Those question marks are really questions.. Any clarification appreciated..

Re:If this precedent holds...

[v1]

I think in principle the DMCA is merely another charge to be tacked on when a crime (copyright violation) has already occurred. Sort of how you can get a heavier charge if you're near a school, use a firearm, are a felon, etc. In this case, if you not only violated copyright, but went well out of your way to do it by "circumventing a protection method". (makes it harder to claim accidental infringement)

But historically it's been getting used as the primary law broken, which was not what it was originally intended for. That's like being charged with being in a school zone, without any proof of your having been speeding. "So would you like to settle with us for having been in the school zone, or do you want to get drug through court to prove your innocence on speeding?"

The unfortunate part is that the law has technically been getting interpreted correctly as written, because it's written backwards in the first place. This judge that overturned on appeal probably interpreted the law for what it was supposed to be, not what it is. Normally I'm against this, but in this case true justice actually prevailed over book justice. As such I'm not sure whether to support this or not. It sets a bad example of how the legal system is supposed to work - that it has to malfunction for fair justice to prevail. I'd be a lot happier seeing the law getting fixed than getting end-run-around. Mainly because this is likely to be an isolated incident.

The entire idea that someone can be charged with circumvention without being charged with copyright violation is just plain backward.

Re:If this precedent holds...

[Pharmboy]

It doesn't matter if the DVD says "no copying" if he is making copies that qualify as "fair use", which would take precedence. DMCA isn't about copying anyway, it is about bypassing security encryption. The judge appears to be saying "yes, they used the software illegally and are subject to fine, but using a crack to get around a dongle is not a DMCA violation by itself.".

In otherwords, if you copy your DVD using any method, then they can still sue you for infringement but is likely not a DMCA violation if you are doing so simply to USE the DVD (fair use). If you did it to make copies to sell, that might be a different case. In short, if you are breaking encryption for your applications that qualify under fair use, thus perfectly legal (make a personal backup copy of a disk you already own, or to create a critique, to parody but not satire, for education, etc.) then there is a good chance that you won't be found to be in violation of the DMCA. Keep in mind, IANAL and even being legally in the right can put you in the poorhouse defending yourself here in the good old USA.

Re:If this precedent holds...

[GNUALMAFUERTE]

Damn. If only there was some kind of slashdot user who was some kind of legal advisor from some big county in the US.

Re:If this precedent holds...

[cfulmer]

No... The question is "What does the technological measure STOP people from doing?" If it stops them from doing something which would be copyright infringement, then circumventing it is a DMCA violation. If it ONLY stops them from doing things which are *not* copyright infringement, then circumventing it is NOT a DMCA violation.

It may be that you can come up with a fair use claim to why you want to copy the DVD, but it's really irrelevant -- there are plenty of non-fair use copies that the DVD copy control system.

Re:If this precedent holds...

[FlyingGuy]

Bypassing a dongle is not about fair use by any stretch of the imagination.

While GE is not guilty of a DMCA violation they are more then likely guilty of a contract violation.

There are many many software programs that use dongles to control the number of machines using the program because it is the only way software manufacturers can keep people and companies honest. Companies like Zmax use them because they sell very powerful software tools at very reasonable prices. Now their dongles do not expire but you have to purchase support for ongoing updates. If you don't the product will continue working.

Re:If this precedent holds...

[PopeRatzo]

But, GE was illegally using software which it did not have the rights to use with of without the Dongle

You're looking in the wrong place. This case is not about GE (well, it is, but not for us). This case is about the DMCA and cracks are showing up in its armor.

This ruling would never have come down if the original defendant had not been a giant like GE. But it's good that corporations learn that the knife of these awful laws cuts both ways. Ultimately, these laws (and treaties) are going to hurt business more than help them.

Then watch how quickly things change. When the plaintiff is some little company with 10 employees, or a grandmother with a computer, forget about it. But when it hits the fortune 500, the squealing is going to be deafening.

Re:If this precedent holds...

[Runaway1956]

I actually read that entire PDF. The reasoning is so convoluted, I fear my brain has twisted around itself. How do I unread it?

Really - having read it, all I got from it was that the claimant failed to prove damages. Well - that, and the fact that downloading and using a hacked software doesn't make me liable for bypassing DMCA. The second part is the only part that really matters to most slashdotters. But, the first point seems at least as important. If the claimant cannot reasonably demonstrate real damages, then he should be entitled to NOTHING!!

Re:If this precedent holds...

[AK Marc]

If you COPY a DVD for ANY purpose (other than the temporary copy in memory sort of a thing) and by any methods you have committed copyright infringement.

My understanding is that a single copy for archival purposes is allowed. Also, all copies necessary for use are allowed (in RAM and such). So if DVDs are CCS protected, someone on Linux could claim that reading straight from the DVD is blocked by the CCS, but ripping it to the HD and stripping it is necessary to run it, and thus allowed, plus, and archival copy could be stored, as those necessary to running it don't count as archival. So you can have the original DVD, one archival copy, and a copy on the HD without violating copyright.

What this seems to do is make something like DeCSS on Linux platforms--pulling out copy protection but not actually creating another copy--not a DMCA violation for use. It's not as clear on whether or not it is still a DMCA "trafficing" violation to distribute it.

Since DVDs are ROM, how do you strip CCS without making a separate copy? Even a transitory copy, like on the HD until you can burn it to another disk and destroy the original CCS version and your HD version would have to coexist for a short period, making your version illegal under your statements where Fair Use has no bearing. So again, you'd have the rights, but you'd have to break the law to exercise them. That's the position we are in now. I have the right to format-shift my content, but it's illegal for me to do so, in many cases.

Re:If this precedent holds...

[Thinboy00]

IANAL. IIRC DeCSS lost because it wasn't fair use since the site had ads. But libdvdcss (from VideoLan, makers of VLC; the equivalent of DeCSS; site has no ads in sight, no pun intended) might get cleared.

Re:If this precedent holds...

[mysidia]

What's interesting is the idea that use prevention does not count as copy prevention.

So if this were to become a precedent, then if Joe average makes a copy of a DVD image onto his hard drive, using ordinary DVD imaging technology,

After copying it, he can decrypt in order to view, because CSS encryption is a use prevention technology, that does not prevent or interfere with copying of the media contents.

Only the ability to view them, because the DVDCA standard requires DVD players verify a volume ID code in order to allow viewing the media.

Re:If this precedent holds...

[Drishmung]

See RFC 1925, rule 3.

Re:If this precedent holds...

[Pharmboy]

If you COPY a DVD for ANY purpose (other than the temporary copy in memory sort of a thing) and by any methods you have committed copyright infringement.

I understand that the case has nothing to do with fair use. If you read my comment, I made that quite clear that they did infringe, but the DMCA didn't apply, in the first couple sentences. I have no idea how you got the idea that I was stating otherwise. The comments on fair use were concerning the results of the finding, NOT the content of the case.

In how this applies to regular people, my statement still applies. Many would argue that "Fair Use" applies to DVDs here in America, just as it does for CDs, tapes and documents, so copying a DVD isn't infringement if you own the DVD and are only making an archival copy, which the law does allow. There really isn't any question about that. The only question WAS that in order to make the copy, it was thought you had to violate the DMCA, all in the quest to make the copy that all parties agree is legally "Fair Use". This case would indicate that it ISN'T a DMCA violation.

Re:If this precedent holds...

[JohnFen]

My understanding is that a single copy for archival purposes is allowed.

There is no strict number of copies allowed. However, it's also not true to say that any time you copy a DVD for any purpose it's a copyright violation. There are many circumstances under which it's not, and backups have generally been held to be one of them. Having a large number of backup copies might be taken as evidence that your purpose was something other than backing the DVD up, though.

Also, the backups and the original must be treated as an indivisible unit. I.e., if you lend/sell/give the original (or any backup), then all other copies must go along as well.

Re:If this precedent holds...

[Svartalf]

Illegally using?

Please enlighten us as to which law they were breaking there?

Re:If this precedent holds...

[LocalH]

Actually, you're both right, kind of.

If you copy a copyrighted work, then it's technically infringement. However, archival copies and fair use are defenses to infringement such that, while yes, you DID infringe copyright, that infringement is not actionable.

At least that's the way I understand it.

Re:If this precedent holds...

[Svartalf]

Copyright law does not cover use. Copyright covers publication, derivative works, and that sort of thing. Use is a differing beastie and that's the space EULAs usually work.

Now, was GE in tortious violation of their agreements with MGE? Perhaps. But breaching things so that they don't need their dongles solely for their own use, that's neither a Copyright nor apparently really a DMCA violation if this precedent stands.

Re:If this precedent holds...

[AK Marc]

Fair Use is explicitly allowed by law. So something that falls under it is legal. However, it's an affirmative defense. That is, if they accuse you and it *is* Fair Use, if you don't state it is as the defendant, then you should lose the case. You must assert and show it as an affirmative defense. So it's legal, but only as a defense, so they can bring action against you, you just have a way to "beat" it. So I'd classify it as non-infringing, but that you are the one that has to prove it to be non infringing, as opposed to the normal burden of proof that goes the other way around.

Re:If this precedent holds...

[Vash21]

My understanding is that a single copy for archival purposes is allowed.

There is no strict number of copies allowed. However, it's also not true to say that any time you copy a DVD for any purpose it's a copyright violation. There are many circumstances under which it's not, and backups have generally been held to be one of them. Having a large number of backup copies might be taken as evidence that your purpose was something other than backing the DVD up, though.

Also, the backups and the original must be treated as an indivisible unit. I.e., if you lend/sell/give the original (or any backup), then all other copies must go along as well.

Im not necessarily disputing your post, but the part about the backups and the original being indivisible i have never heard before, they way you put it makes sense logically, but i don't see it being provable in court, i.e. if my friend has a DVD, and i copy the same DVD to my hdd, then i could simply say that that copy was for my backup purposes and that i own the dvd. The same logic could be applied with torrenting, all i need to do is find someone who owns the same IP, or even buy it myself after the fact, and i should be immune from any copyright laws. Now if what others have said in this thread are true, then the only illegal act i have commited was breaking the encryption of the DVD in order to copy it making me liable under the DMCA, which if i torrented it, i would be immune from.

All above is simply my take on what the parent threads have stated as fact, and what i assume as fact, please correct me if i am wrong, because i really doubt there isn't a single lawyer who has gotten his client off on a copyright infringement due to exceptions like i have proposed, also is the act of downloading copyrighted IP's illegal if you own a legal copy of the IP?

Re:If this precedent holds...

[cgenman]

"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."

That's the key line. Sure, not frivolously mixing in DMCA claims is important. For example, garage door openers or toner. However, going as far as to say that a genuinely copyrightable work is not protected by the DMCA if the access granted is not in violation of copyright law is huge. If other courts were to adopt this notion, it would allow for things like bypassing Blu-Ray copyprotection to put movies on your iPhone, or research into copyprotection systems in the US.

Not too long ago we had to beg the government to allow us to unlock our purchased-and-paid-for phones due to the DMCA. To say that the DMCA covers only actions that would go against copyright law is both common sense and an amazing breakthrough.

Let's hope that other courts adopt this interpretation.

Re:If this precedent holds...

[tibit]

This!! Someone please mod it up.

Re:If this precedent holds...

[greaseweasel]

Perhaps asteroid 328, rather than a planet?

Re:If this precedent holds...

[jonbryce]

If you take a book as an analogy, copyright law has nothing to say about the act of reading it. If you have a contract that says you have to pay money every time you pick the book up and read it, then failure to pay those fees is a breach of contract, but not a copyright violation.

Re:If this precedent holds...

[ethorad]

If you COPY a DVD for ANY purpose (other than the temporary copy in memory sort of a thing) and by any methods you have committed copyright infringement.

Didn't Blizzard manage to sue WoWglider for copyright infringement because it made a copy of the WoW client into memory?

Re:If this precedent holds...

[Thing 1]

I'm sure it's just falling with style...

Re:If this precedent holds...

[geminidomino]

The question is "What does the technological measure STOP people from doing?" If it stops them from doing something which would be copyright infringement, then circumventing it is a DMCA violation.

I don't think that yardstick works out, in practice, though. Too much like common sense and I seem to remember some dipshit judge(s?) deciding that loading software into memory (i.e. "using" it) does constitute copyright infringement if done without the express permission (i.e. EULA) of the appropriate corporate overlord. I wish I could remember the case...

But if that's still true, then simply using the software WOULD be copyright infringement, so beating the dongle would be a DMCA violation.

(NB: I know, I know. I'm using logical reasoning, not legal reasoning)

Re:If this precedent holds...

[cfulmer]

That would depend a lot on the license agreement and on how it's interpreted -- does it just say "you are licensed to make incidental copies only until the dongle expires" (in which case it could be copyright infringement) or "you agree not to make incidental copies after the dongle expires" (in which case it's just a breach of contract).

In any case, Section 117 of the copyright act says that it's not copyright infringement to load a program into memory if you own the copy you're loading. Remember that copyright doesn't say "you can't use the software without the author's permission" any more than it says "you can't read the book without the author's permission." It just limits your ability to copy it and do a few other things.

Re:If this precedent holds...

[Sparr0]

The right to use the software is not one reserved exclusively for the author. That is, of the thousands of things you might do with a copy of the software, using it falls into the same category as "turning the CD into a frisbee" and "deleting it from your hard drive", not the same category as "making derivative works" and "selling copies" (those being the things you need permission for).

Re:If this precedent holds...

[geminidomino]

Remember that copyright doesn't say "you can't use the software without the author's permission" any more than it says "you can't read the book without the author's permission." It just limits your ability to copy it and do a few other things.

Hey, don't remind me, remind the jurists! ;)

Re:If this precedent holds...

[Courageous]

Common Law, in particular the part of our basis in legal tradition where one cannot violate a contract willy nilly.

Re:If this precedent holds...

[kuei12]

Here is another issue. Software companies send out cd's with ALL software options included. like mastercam, for example. The dongles only allow the user to access certain features. So, how could Mastercam hold up in court if you were running mill level 3 and only had license for mill level 1? After all, they gave you the software and say "don't use it"? That won't hold water! It is like a car dealer selling a car and saying you can't have the trunk key and use the trunk unless you pay an extra $4000. Sounds to me like Mastercam would be at fault because they wanted to get their software out as cheaply as possible.

Re:If this precedent holds...

[BadAndyJ]

Actually, if this means the demise of DRM as we know it, don't you think it would be a GOOD thing? I mean, if you can't use a dongle to protect your work, it sounds to me like you can't use a DVD / CDROM etc to protect your work either. I mean, each is merely a storage medium when you get down to it. Silicon or plastic, makes no real difference. Chips or disks, who cares... What would happen if Hollywood decided that disks were no good anymore and decided to use USB keys instead. With each movie, they`d put a use-restricted numerical code. That usb key could also be speed restricted, so that the data could only go out at the speed the movie required, to deter copying. (Or, at least make it reminiscent of the video tape copying days...) I hope we never see those days, and that the ``dongle precedent`` holds. Kill DRM.

Re:If this precedent holds...

[ArsonSmith]

If that DRM-"protected" DVD that you own was locked to your DVD player, then fair use would allow that friend you loaned it to to also be able to view it on his DVD player.

Re:If this precedent holds...

[Gr8Apes]

I believe technically it's not an infringement until you distribute.

This has been something the content companies have been pushing so hard for so long that people are actually spouting their line that copying in and of itself is illegal (it's not and never was meant to be, or at least wasn't until some of the very recent laws came about)

Recall that original copyright law was put into effect to prevent someone from profiting off another's work without compensation for a limited time, after which the work would go into the public domain. Since then the Disney laws have made a mockery of the original intent.

Re:If this precedent holds...

[JohnFen]

also is the act of downloading copyrighted IP's illegal if you own a legal copy of the IP?

Well, as I understand it (and IANAL), simply downloading is not illegal. Uploading is (and if you're downloading from a torrent, you're uploading as well.)

What I know for fact is that if you're sharing IP in either direction, whether or not you legally own a copy of the IP is irrelevant to the legality of the sharing.

Re:If this precedent holds...

[butlerm]

I think in principle the DMCA is merely another charge to be tacked on when a crime (copyright violation) has already occurred.

The Court of Appeals for the Federal Circuit in Chamberlain v. Skylink (2004) held just that - namely that the DMCA does not create a separate property right, but only increases liability when an actual copyright violation has occured. This precedent was the basis of the recent Fifth Circuit holding on this point.

Does this apply to everything?

[Anonymous Coward]

I feel stupid for asking this, but doesn't this mean that as long as you're not violating copyright, you can go ahead and crack that protection? As in... backing up a DVD I own will finally be legal? Any actual lawyers got a thought on this?

Re:Does this apply to everything?

[BoneFlower]

At least as applies to simply using the protected work.

I wouldn't be shocked if it reaches the Supreme Court and they uphold the ruling in the most narrow manner possible, leaving fair use copying uncovered while permitting simple use and viewing.

That doesn't necessarily mean the Court says fair use shouldn't be covered, just that it was not explicitly part of the original case so it does not get answered in their ruling.

Re:Does this apply to everything?

[Pluvius]

No, backing up involves copying, and hence violates copyright.

(a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
-- 17 U.S.C. 117

For whatever reason, however, this only applies to computer programs. Presumably because other media weren't so easy to copy back when this part of the code was last modified in 1980.

Rob

Re:Does this apply to everything?

[BoberFett]

I thought courts have already ruled that a program residing in memory is a copy, and therefore making that copy without the dongle (which implies limited consent to making said copy in memory) is a violation of copyright. I wouldn't be surprised to see this reversed.

Re:Does this apply to everything?

[sjames]

I wonder, given that DVD menus are effectively a simple bytecode run in an interpretor that results in the playing of video (possibly with additional video and audio overlays) that the DVD as a whole can be taken to be a computer program and it's essential associated data files.

Re:Does this apply to everything?

[Dwonis]

I think that was the case in the U.K., but not in the U.S.

Re:Does this apply to everything?

[MrLint]

Didn't Blizzard argue that loading a game into memory to play is a copy? And then altering it in memory would be a DMCA violation. In order to play a video thats encrypted, you must work on the data, and thus to do so must make a copy of the data off the disk.

Now IMO this 'copying' argument when used this way is retarded... but clearly IANAL

Re:Does this apply to everything?

[Man On Pink Corner]

No, backing up involves copying, and hence violates copyright. It does mean though that things like VLC can get on with playing DVDs/Blurry disks.

Note that copying a DVD is entirely trivial, and unencumbered by any protection at all. CSS is purely a "use-protection" mechanism (which is why it was always so violently wrong for the DMCA to apply to it -- copyright law was supposed to govern copying and distribution, not use.)

So IMHO, not being AL, this ruling does appear to argue against the DMCA's ability to regulate DeCSS cracking. I expect it will be promptly overturned at the next level of appeals, because after all we can't allow copyright law to work for both the producer and consumer, can we?

Re:Does this apply to everything?

[Anonymous Coward]

In the PsyStar vs. Apple case, I believe it was ruled that Apple could not claim copyright infringement on the copies of Mac OS loaded into RAM when each of the computers booted.

Re:Does this apply to everything?

[Ashriel]

To my knowledge, in the US it was found that a copy of any media held in volatile memory in order to allow usage was considered to be fair use and not a copyright violation.

Honestly, would any other finding even make sense? (Not that I'm implying that judges always make sensible decisions).

Re:Does this apply to everything?

[hedwards]

It's effectively a moot point as they aren't going to know about such back ups unless you're definitely violating copyright law. Meaning that they have no way of knowing if you make the copy, only if you distribute said copy over the net, or download as a substitute for backing up. Consequently, I doubt very much that it's going to be litigated at this point, except for third party providers of technology specifically to back up the materials.

Re:Does this apply to everything?

[hedwards]

Citation needed as copyright law specifically exempts such copies from consideration.

Re:Does this apply to everything?

[ep32g79]

MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993)

and more recently

MDY Industries, LLC v. Blizzard Entertainment, Inc and Vivendi Games, Inc. No. 06-2555, 2008 U.S. Dist. LEXIS 53988, 2008 WL 2757357 (D. Ariz. Jul. 14, 2008)

Re:Does this apply to everything?

[Ken_g6]

I don't think that applies to DVDs. However, if I understand Bd+ correctly, it's some software, designed to be run on a Bd+ virtual machine, that decrypts the associated movie files on the fly.

Wouldn't it be perfect hitting the MPAA over the head with their own favorite copy-protection technology?

Re:Does this apply to everything?

[sjames]

It's moot for me, but it would mean that DVD copy software has a perfectly legal use. Tools that have no legal use cannot be sold. Those with legal uses can be, even if they're commonly used for illicit purposes.

The more people there are who see the utility of archival copies and who routinely do so, the harder it is to try to ban it.

Re:Does this apply to everything?

[BoberFett]

Thanks, those appear to cover what I thought I had read regarding RAM "copies."

Re:Does this apply to everything?

[VGPowerlord]

But did the MDY v Blizzard case actually specify that the copy of the game in RAM was illegal, or that modifying the copy of the game in RAM was illegal?

Re:Does this apply to everything?

[GNUALMAFUERTE]

Which is absolutely ridiculous, because when you are playing the disk on a regular DVD player, it is technically being copied. Also, since when you watch the DVD your brain is storing those images to a reasonable point (we don't know exactly how much of it is being stored permanently on your brain), viewing it counts as copying too.

Copyright is unnatural, therefore, any attempts to quantify copying will fail miserably.

Re:Does this apply to everything?

[GNUALMAFUERTE]

The problem here is that copyright is unnatural, and absolutely ridiculous. The only reason for copyright is controlling thought, and profiting excessively from created content. Their orwellian attempt at controlling information allows us to imagine all kinds of ridiculous circumstances.

Example:

If I legally play a movie at my house, but I happen to have a legal surveillance camera in there, and as part of the image my camera is recording, it records the surface of the TV, is that security footage illegal, does it constitute copyright infringement?

If I legally download a movie,let's say, from itunes, and I don't actively share it, but I have my machine connected to the internet, and my hard drive is shared through samba, unsecured, to the whole internet. If someone connects to that samba share, and then copies the movie, is that my fault? Is it my duty too to protect the media I have from being copied? To what extent?

If the photons that my LCD is emitting when I'm watching a move leave my house, am I broadcasting the movie, therefore, infringing copyright? Up to what point am I supposed to protect that movie from being copied? Is closing the curtains enough, or since energy can't be destroyed, only transformed, I am legally obliged to control the energy emanating from my LCD forever?

If I legally store a legally downloaded movie on my hard drive, and then, due to a vulnerability in my operating system, that information is leaked, and every single human being on the world downloads a copy, is it my fault or the fault of the developers of my OS?

Copyright is ridiculous and unnatural, and all attempts to control information are equally stupid.

Re:Does this apply to everything?

[VGPowerlord]

I thought courts have already ruled that a program residing in memory is a copy, and therefore making that copy without the dongle (which implies limited consent to making said copy in memory) is a violation of copyright. I wouldn't be surprised to see this reversed.

If this were applied as a general rule, it would go against the intent of 117. Given the time this law was written, "essential step in the utilization of the computer program in conjunction with a machine" is intended to apply to the copy made in RAM when the program executes.

MAI Systems v. Peak Computer appears to have set a nasty US legal precedent that a person who did not own a computer did not have the rights to run software on it. This prompted 117(c) and (d) to be added by Congress to address the issue of Machine Maintenance or Repair.

MDY v. Blizzard appears to have set a nasty US legal precedent that loading a copy of a program after violating its EULA is a copyright violation.

Re:Does this apply to everything?

[Lehk228]

it would be if it weren't for the fact that bd+ really is non-trivial to crack and distributing cracking tools would still violate the DMCA

Re:Does this apply to everything?

[Lehk228]

the blizzard case set the precedent that altering a running copy of a program was an unauthorized derivative work, and that distributing game cheats could be considered an infringement.

Re:Does this apply to everything?

[mysidia]

The copy is already copied into memory by the time the dongle is to be verified regardless of whether the dongle-based verification to continue running the program and give the user access will succeed or not

So the copy is already made into memory, the dongle only controls whether the program will perform a useful function or not after it was launched.

Re:Does this apply to everything?

[BoberFett]

Wouldn't that apply to hacking this program so that it would run without the dongle?

I don't think the appeals for this case are done yet.

Re:Does this apply to everything?

[LambdaWolf]

My understanding of copyright law, at least pre-DMCA, was that you had to make and distribute a copy to another party in order for it to be an infringement. But the rulings we're talking about said that making an ephemeral copy between two devices in the same computer, all within a single person's possession, counts as copyright infringement. (Or possibly modifying the copy, I'm trying to piece an answer together from the replies here, but my essential question is why it matters if the copy never leaves your possession.)

Can anyone explain the courts' rationale here? Is it then also a crime to photocopy an entire book and then immediately burn the copies alone in a room? Does this come from the DMCA or some other nonsense legislation, or is it actually meant to mesh with common sense somehow?

Re:Does this apply to everything?

[vux984]

It's effectively a moot point as they aren't going to know about such back ups unless you're definitely violating copyright law.

Oh really?

Meaning that they have no way of knowing if you make the copy, only if you distribute said copy over the net, or download as a substitute for backing up.

Or you could just go through customs with your laptop and/or exteneral hard drive where the backup is stored.

Or you could be subject to software down that road that will audit your hard drive and report any suspected infractions... maybe it will have a friendly name like "iTunes 11".

Relying on a law being 'effectively moot' is a bad idea. Better to get rid of it before it finds ways to bite you in the ass.

Re:Does this apply to everything?

[cpghost]

Wouldn't it be perfect hitting the MPAA over the head with their own favorite copy-protection technology?

That would be funny indeed. Want to bet how long it would take the MPAA to have the DMCA updated, should anybody really tried to use this loop hole?

Re:Does this apply to everything?

[tibit]

The weirdest part of Blizzard's attitude here is that it relates to games, for crying out loud. A game cheat is like, say, a hopscotch pattern drawn such that it makes it easier for a kid to jump through it. Say a kid finds it particularly easy to jump forwards/backwards a little bit farther than sideways, and draws the pattern stretched out in one direction. If other kids disagree, they can just not play with the "cheat" anymore. Making a bigger fuss out of it would seem rather silly. But that's precisely what Blizzard does: making a big fuss out of playground cheaters. That makes Blizzard's legal arm the playground retards IMHO. Things are getting blown way out of proportion recently.

Re:Does this apply to everything?

[geminidomino]

Can anyone explain the courts' rationale here?

IANAL but it seems to me that sort of idiocy is what lets software companies deny you the use of something you bought and paid for unless you agree to use it under their (usually onerous) EULA.

Re:Does this apply to everything?

[VGPowerlord]

If other kids disagree, they can just not play with the "cheat" anymore.

In other words, stop playing WoW?

Blizzard loses money in that case. You seriously expect them not to protect a multi-hundred million dollar per month enterprise?

Re:Does this apply to everything?

[Rysc]

you cannot deprive the user the ability to view his own purchased content; therefore you can't say these bits can fly NOW when it goes to your eyes but not when it goes to another disk drive as the destination.

You can't say that technically because there's no technical way to know the difference, but you sure as hell can say it legally. Legality cares very much when, for what purpose and with what intent even if these things cannot be in any way encoded. It may be stupid but it's the kind of stupid that laws have been being and dealing with for years and (believe it or not!) the lawyers and lawmakers don't just not see this as a problem, they actually desire this behavior and would think you crazy if you suggested that it should be changed "just because" it makes no sense (to you) and there isn't really any way to know.

Re:Does this apply to everything?

[Late Adopter]

What makes your questions interesting has absolutely nothing to do with copyright. You could replace copying in your examples with other torts or crimes that you're unintentionally abetting.

For example, if it rains, and the rain freezes to my walkway, and I don't clear it off or post a sign, and somebody walks up to my door but slips and severely injures themself, am I liable? (yes!)

Re:Does this apply to everything?

[Cassini2]

IANAL, but I will have a go at answering the questions.

If I legally play a movie at my house, but I happen to have a legal surveillance camera in there, and as part of the image my camera is recording, it records the surface of the TV, is that security footage illegal, does it constitute copyright infringement?

If the security footage is distributed, then Yes you are violating the copyright on the movie. If the security footage is kept for your own use, then you are okay under the "family and friends" exemption. The law on showing the security footage to other people, like a private investigator, is complex, because outside financial interests and public viewing may be at issue.

If I legally download a movie,let's say, from itunes, and I don't actively share it, but I have my machine connected to the internet, and my hard drive is shared through samba, unsecured, to the whole internet. If someone connects to that samba share, and then copies the movie, is that my fault? Is it my duty too to protect the media I have from being copied? To what extent?

Recent court cases indicate that having the open samba share will make you vulnerable. If someone actually does download it, then you are vulnerable for uploading it.

If the photons that my LCD is emitting when I'm watching a move leave my house, am I broadcasting the movie, therefore, infringing copyright? Up to what point am I supposed to protect that movie from being copied?

You are not allowed to have a "public performance", unless the material is properly licensed. Singing along to your iPod while in public counts as a public performance, however to the best of my knowledge, no one has ever been taken to court for it.

Expect a lawsuit if you operate a "drive-in" movie. Similarly, I think someone was sued after operating a home laser light show without the appropriate license for the copyrighted music.

Is closing the curtains enough, or since energy can't be destroyed, only transformed, I am legally obliged to control the energy emanating from my LCD forever?

If someone (in the public) can view the "energy from the LCD" and reconstruct it into something resembling the original copyrighted work, then yes, it is a public performance. For instance, if you played the radio sufficiently loudly at a workplace that other co-workers could hear it, then in some jurisdictions (U.S., Britain), then you should expect a lawsuit. A public performance occurs when someone views the material.

If I legally store a legally downloaded movie on my hard drive, and then, due to a vulnerability in my operating system, that information is leaked, and every single human being on the world downloads a copy, is it my fault or the fault of the developers of my OS?

It is your fault. Your are responsible. I really clever lawyer may also argue that it is all Microsoft's fault too, as they enabled the infringement. Expect the person with the deepest pockets to be sued and be the primary target of the lawsuit, with an initial "scatter gun" strategy of listing all involved parties as defendants. These lawsuits can be difficult (expensive) to extricate yourself from.

The damages may be reduced if your involvement can be shown to be accidental and inadvertent, however this does not mitigate fault or responsibility.

Re:Does this apply to everything?

[tibit]

Blizzard's money stream comes from addicts IMHO. Those won't care about cheats, I'd think?

Re:Does this apply to everything?

[VGPowerlord]

Blizzard's money stream comes from addicts IMHO. Those won't care about cheats, I'd think?

That would be wrong.

The cheaters have a tendency (along with gold farmers) of ruining the game's in-game economy.

This has the net effect of making people who play the game to have to spend more time playing the game to get the virtual money to buy other in-game things.

Re:Does this apply to everything?

[tibit]

I'm not familiar with WoW -- do you have to buy everything from free-market sources? Or are there some "state sponsored" stores where perhaps prices are fixed and demand doesn't affect them? I presume some rare items that are unavailable in "state" stores could get prices inflated by influx of cheated cash or goods, but are those important to gameplay? How many items a semi-serious WoW player buys from others?

Re:Does this apply to everything?

[VGPowerlord]

I'm not familiar with WoW -- do you have to buy everything from free-market sources? Or are there some "state sponsored" stores where perhaps prices are fixed and demand doesn't affect them? I presume some rare items that are unavailable in "state" stores could get prices inflated by influx of cheated cash or goods, but are those important to gameplay? How many items a semi-serious WoW player buys from others?

WoW has several classifications of items: Trash (grey), Common (white), Uncommon (green), Rare (blue), Epic (blue), Legendary (orange), and Bound to Account (gold-ish). The colors mentioned are the color of the item's name in the game.

Trash items are only dropped from killing monsters, but are just there to sell to NPC vendors for cash. Some Common items and a few Uncommon items may be sold by NPC vendors. Some Common, Uncommon, and Rare items are gotten through Gathering trade skills, but they relate to another trade skill. Everything else is gotten by killing monsters or by buying them from other players via the Trade system or the in-game Auction House. There are also specific types of items that are only sold through Vendors that may be of Rare and Epic quality, such as Mounts. High-level armor set items or Bound to Account items may also be gotten using tokens that drop off of bosses in high level dungeons.

Note: Any Uncommon, Rare, Epic, or Legendary item dropped by a dungeon boss or received for completing a quest is bind on pickup and cannot be sold/traded to other characters. Other specific items are bound to account and can only be traded between characters owned by the same account through the game's mail system.

In other words, the items sold in the auction house are the items you get purely by chance or create through trade skills. At lower levels, I believe Rare items have something like a 0.07% chance of dropping for each enemy killed. Or lower.

To my knowledge, there are no Legendary or Bound to Account items that drop randomly.

Cheaters love the Auction House. After a day full of a bot leveling, they trot over to the nearest one and list any green, blue, and purple items they've acquired on it... assuming they have their bot set to only grab green or better items, and also assuming it would drop the lowest value green items to grab blue or purple. Now, some people are stupid and set ludicrous prices no one will pay. Others use, presumably, a WoW addon like Auctioneer which, if you let it run for 15 minutes or so, will scan everything currently on the Auction House, and keep a database of prices, so it can recommend a price to sell things for.

Hell, Glider may even be programmable to do the Auctioneer AH scan and sales for you.

Re:Does this apply to everything?

[tibit]

Thanks, that was very informative.

Re:Does this apply to everything?

[ep32g79]

The Arizona circuit court found that a copy in RAM was indeed a copy as applied under the DMCA. The RAM copy did not infringe on it's own, but became infringing when MDY's product skirted Blizzards warden technology(anti-circumvention device) which refuses content access to those who do not pass the algorithms hash checks.

Re:Does this apply to everything?

[eth1]

For example, if it rains, and the rain freezes to my walkway, and I don't clear it off or post a sign, and somebody walks up to my door but slips and severely injures themself, am I liable? (yes!)

Only in our completely fscked up legal system. Any system based on common sense would say "DUH! It's slippery! Be careful or don't walk there!"

Re:Does this apply to everything?

[Late Adopter]

The legal theory is sensible. What's fucked up is that two grown adults can't settle their dispute outside a court of law.

it's still good!

[JazzyMusicMan]

It's the pig le resistance! It's just a little airborne! It's still good, it's still good!

Wrong law to try and apply

[Derekloffin]

While they did circumvent a defensive measure, they didn't make a copy of it. This is a matter of a contractual violation (assuming it is even that, I'm no lawyer so...). They paid for said software use for a period of time, and are going beyond that allowed period of time.

Re:Wrong law to try and apply

[orkysoft]

They made a copy of the software from disk to ram to run it. At least, that's the reason you need a licence to use software. Srsly.

Re:Wrong law to try and apply

[seeker_1us]

We haven't read their EULA. There is likely nothing there saying that they have to have the dongle on. Most of those are boilerplates anyway.

Re:Wrong law to try and apply

[burris]

The copy in RAM is exempted in 17 USC 117(a)(1) Other states probably also have similar laws. You don't need a license to use an authorized copy of software.

Re:Wrong law to try and apply

[burris]

If you read the opinion you will see that the Court found that they did not circumvent anything. Someone else did the circumvention and GE/PMI simply used a cracked copy.

Moreover, the DMCA’s anti-circumvention provision does not apply to the use of copyrighted works after the technological measure has been circumvented, targeting instead the circumvention itself. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001). MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim. See id. (“[T]he DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.”).
Because the DMCA does not apply to mere use of a copyrighted work, and because MGE has not shown that GE/PMI circumvented MGE’s software protections in violation of the DMCA, the district court did not err in granting GE/PMI’s Rule 50(a) motion dismissing MGE’s DMCA claim.

Re:Wrong law to try and apply

[orkysoft]

Then how does it become authorized? Why do EULAs exist?

Re:Wrong law to try and apply

[hedwards]

Copyright doesn't cover that. Any copies necessary to use a authorized copy are deemed to be non-infringing. That includes copies in RAM. The reason why you need a license is that companies distribute their products contingent on agreeing to the license. No agreement no authorization to use the copy. It's kind of a bastardization of copyright as you're not supposed to give the copy away before working out the agreement. But it's not as bad as MS and the ever changing EULAs.

Re:Wrong law to try and apply

[burris]

A copy is authorized if it's made under the authority of the copyright holder. When you obtain a copy of software that was manufactured by the copyright holder or someone authorized by them to manufacture copies, or download it from the copyright holder or someone authorized to distribute their software, then that copy is authorized.

EULAs exist because software companies want more than copyright gives them. A EULA is just an ordinary contract and has nothing to do with copyright.

Re:Wrong law to try and apply

[vux984]

But it's not as bad as MS and the ever changing EULAs.

I take it you haven't used iTunes lately. I get a 250 page document to agree to on my phone everytime i fool around with a free new app. This is not an MS phenomena.

Re:Wrong law to try and apply

[gnasher719]

The copy in RAM is exempted in 17 USC 117(a)(1) [cornell.edu] Other states probably also have similar laws. You don't need a license to use an authorized copy of software.

The devil is in the details. You are allowed to make a copy into RAM if you have the right to use the software (so if I sold you some software with a contract to do anything you want with the software except loading it into RAM, and sued you as soon as you use it, that wouldn't fly). But it is a copy, obviously, so if you _don't_ have the right to use the software then everytime you load it into RAM you commit copyright infringement. That's why EULAs actually work. Nobody can hold you to the terms of a EULA (probably) but if you don't accept most EULAs then you have no right to copy the software and making a copy into RAM is copyright infringement.

Re:Wrong law to try and apply

[Pharmboy]

The same reason that police say "You can't make a video of us in action!" in states where there is no such law (and other states with those laws, if you consider the US Constitution). They do it because they think it gives them more rights, although this has never been tested. Considering you aren't actually SIGNING a contract, it is likely that a click through EULA isn't worth the paper it's written on.

EULAs are the equivalent of McDonalds saying "By accepting this beverage from our drive-thru, you are agreeing to only sip the drink with an approved straw, with your eyes closed, and not allow anyone else to have a sip of the beverage. If you fail to abide by these rules, you are subject to a fine of $150,000 and criminal prosecution." It is no less absurd.

Re:Wrong law to try and apply

[burris]

I'm sorry but you do not need a license to use a computer program any more than you need a license to read a book or look at a painting. Loading a copy into RAM as an essential step in the utilization of the program is not infringement (see above.) I challenge you to find anything in the law that says otherwise.

EULAs work because the terms are presented to you and you take some affirmative step that signifies that you agree to them, just like any other contract.

Re:Wrong law to try and apply

[mysidia]

Copyright is solely controlled by the federal government; individual states cannot pass laws that control what is copyrightable, or what is exempt from copyright, because the authority is reserved for the feds.

Re:Wrong law to try and apply

[mysidia]

The "right to use" is not an exclusive right protected by copyright. You do not need a right to use: you only need to legally possess a work, to have the right to use it under copyright.

If you legally possess but your contract says you cannot use it, and you use it, that's (maybe) a breach of contract, but not copyright infringement, the copies to RAM are still exempt.

Re:Wrong law to try and apply

[Anonymous Coward]

This is not an MS *phenomenon*. FFS, doesn't anyone speak Latin any more? :-)

Re:Wrong law to try and apply

[nosferatu1001]

Wrong - if you purchase the software then no license is required, meaning that not agreeing to the EULA is perfectly fine.

Essentially ask yourself this: if you purchase a book could you be required to agree to a license before you could read it? No? same for computer programs.

OF course this is the UK, which is slightly rational about these things. Oh, and IANAL, etc

Re:Wrong law to try and apply

[nosferatu1001]

Even then (UK at least) they are likely entirely unenforceable, as they are trying to impose a contract of adhesion, containing unfair terms (*everything* in there is unfair as you have entered into a simple sale, for which no license was presented at the time of sale and no expectation that it works as a license has been created) as well as being presented after the fact of the sale, as part of a simple retail transaction.

EULAs are essentially "we'll pretend we have authority we dont have in the hope you believe us" - im amazed they have not been outlawed like "no refund" signs.

Re:Wrong law to try and apply

[Courageous]

it is likely that a click through EULA isn't worth the paper it's written on.

Not so. EULA's have been found to be binding. :-(

C//

Re:Wrong law to try and apply

[orkysoft]

It's all Greek to them :-)

The summary could be better

[stinerman]

[quote]MGE sued, won, and has now lost on GE's appeal.[/quote]

TFA:

[quote]A jury awarded MGE more than $4.6 million in damages for copyright infringement and misappropriation of trade secrets, but the trial judge dismissed its Digital Millennium Copyright Act claim. MGE appealed, arguing that its dongles barred the kind of access to its software that the Act is meant to prevent.[/quote]

MGE appealed the trial judge throwing out the DMCA claim. The appeals court confirmed the ruling. GE didn't appeal anything.

Re:The summary could be better

[Anonymous Coward]

You also seem to have missed the fact that you need to preview your post before submitting it.

I always have a hard time associating...

[Rivalz]

Common sense prevails again. Now let's start blocking common sense in EULA's and only license the software to our users that way any time they use our software they run the risk of breaking our agreement.

Re:I always have a hard time associating...

[Z00L00K]

Common sense is already blocked in many EULA:s.

Re:I always have a hard time associating...

[Dunbal]

Microsoft at least isn't calling it EULA anymore. They are calling it a CONTRACT.

So I think this is kinda cute - I print out said "contract". I make some modifications, add or remove some clauses. And I am still waiting for an authorized Microsoft rep to come to my place and sign said "contract".

Re:I always have a hard time associating...

[hairyfeet]

You know, I'll probably get hate for just asking this, but I really want to know: what is so bad about the MSFT EULA? I mean we have all heard the story of the guy that had to go to court to be allowed to sell his legally bought copy of AutoCAD, but short of printing off fake discs or VLK keys, has anybody ever been hassled by MSFT over their EULA? You look and everybody has Windows and Office discs for sale, OEM, standard, upgrade, and nobody gets hassled. My former boss bought and sold a ton of OEM Windows and Office copies he got from bankruptcies and auctions, never got hassled So what is the problem?

The ONLY people I've ever heard of getting the smackdown from MSFT were selling counterfeit Windows, hell I don't even think I've ever heard of MSFT pulling an RIAA and suing kids who got a hold of a hot copy of XP, so I just don't get why MSFT gets so much hate for their EULA when they don't seem to be using it to bludgeon folks, unlike say AutoCAD.

Re:I always have a hard time associating...

[Rivalz]

Just because they don't doesn't mean they can't.
And the fact that they are prepared to at a moments notice doesn't make me feel loved as a customer.

Re:I always have a hard time associating...

[Dunbal]

So what is the problem?

      The problem is that some people do not like having terms dictated to them, "problems" or not. It's the principle of the thing. An "agreement" is between TWO parties. An EULA is one party telling another party what to do. Only the funny thing is, back in my day, usually it was the guy that was doing the paying that got to have a say.

Re:I always have a hard time associating...

[kimvette]

Amend it with a post it on your screen prior to clicking.

"Copyright and Right of First Sale applies; rest of contact is null and void"

to amend the contract prior to "signing" (clicking) "I agree"

. . . just as you would amend any other contract you find objectionable.

Re:I always have a hard time associating...

[kimvette]

What's so bad about it? Microsoft expressly disclaims any and all warranty and liability, while maintaining that you do not possess your first sale doctrine rights. Check this out:

http://www.downloadsquad.com/2005/09/09/student-beats-microsoft-legally-by-himself/

Re:I always have a hard time associating...

[butlerm]

There are good reasons for Microsoft to call it a contract. It doesn't make it so, though. If you purchase a copy of Microsoft software from someone other than Microsoft, there is no privity of contract between you and Microsoft. Nor is there any consideration that passes between you and Microsoft.

Lack of consideration means that even if you agree to the "contract" that displays during the installation process, Microsoft hasn't provided you any additional benefits beyond those you already have, those for which you have paid for. Nor are you providing any additional consideration to them. As both a contract and as a license such a "EULA" or end user "contract" is null and void.

One of the software industries' answers to that is that retail end users do not actually "own" anything. This is a highly dubious proposition that is the subject of three pending appeals to the Ninth Circuit.

Re:I always have a hard time associating...

[Firethorn]

There are good reasons for Microsoft to call it a contract. It doesn't make it so, though. If you purchase a copy of Microsoft software from someone other than Microsoft, there is no privity of contract between you and Microsoft. Nor is there any consideration that passes between you and Microsoft.

This is why 'shrinkwrap EULAs' actually have a pretty bad enforcement record.

Judges tend not to look at it kindly when you're buying software that you can't return once opened* with a license hidden within that says 'return to the store for a refund if you don't agree with this'.

Especially when they say you're not buying a copy of the software, you're buying a license for it, with all these nasty one-sided terms, including such things as not offering replacement discs**, or making said discs more expensive than the software.

*Many stores in the USA won't take software returns, period, except for 'even exchange'.
**After all, you're buying a license, not a physical copy. ;)

Re:I always have a hard time associating...

[ais523]

The linked article contains another link containing the actual story. Unfortunately, that secondary link is broken.

Re:I always have a hard time associating...

[tibit]

Software houses are using a shared front company for that, just like motion picture studios and music labels do. The BSA does it for MS, just like ?IAA does it for media moguls.

Re:I always have a hard time associating...

[hairyfeet]

But have you EVER heard of the BSAA taking some kid's college money away for a hot copy of Windows? Because I haven't. Sorry that I can't find the link (my Yahoo foo sucks) but I remember Steve Ballmer saying he wasn't interested in going after kids ala the RIAA, but ONLY interested in busting those factories and ships carrying counterfeit Windows, which as he rightly pointed out had gotten so good with the faking even he couldn't tell by looking.

And I can honestly say I don't think I've ever heard of the BSAA going after anything but businesses running hot software, which frankly I'm for, because if you are gonna make profits with software you should at least pay for it or switch to one of the free alternatives. So I stand by my statement: While we have seen plenty of companies like AutoCAD use their EULA to dictate prices and even who is allowed to sell it, effectively trying to remove first sale rights, MSFT with their EULA has always seemed to be more about CYA and for all the talk of "the big bad MSFT" they have been pretty damned tame when it comes to bashing people with their EULA, even when they legally could.

Hell just look at WGA, they could easily use that to pass out RIAA style extortion letters, but as far as I've seen on XP all they do is complain and offer to sell you a legal copy at a discount no less last I checked. Can you imagine what the RIAA and MPAA would do if they had a way for a machine to phone them if a non authorized CD or DVD was played? The lawsuits would keep the courts tied up for decades!

Re:I always have a hard time associating...

[tibit]

LOL. BSA is routinely doing raids all over the place. Although they only average just below 2 raids a day in the US, so that may not be "much" you'd think. They are quite (in)famous in Europe, AFAIK.

Re:I always have a hard time associating...

[hairyfeet]

Citation on the BSAA raiding individuals or you are just a troll and can move along. The entire context of this discussion is RIAA style attacks, which I have pointed out the BSAA doesn't do, because as it says in their title they are concerned with Business. So lets see that citation.

That's no pig...

[Anonymous Coward]

...that was a lawyer catapulted over the city walls...

Re:That's no pig...

[meerling]

but wouldn't that be a shark jumping the... err...

Re:That's no pig...

[OneAhead]

Sounds like a clear violation of the Geneva conventions to me.

Re:That's no pig...

[mysidia]

Two things... the Geneva conventions apply to prisoners of war, not civillians. Also, people involuntarily transformed into animals are a gray area in regards to the geneva conventions.

And besides, Yubaba would not obey them anyways. The lawyers be lucky to just be catapulted; in all likelihood, they would be roast beast.

Re:That's no pig...

[geminidomino]

Two things... the Geneva conventions apply to prisoners of war, not civillians. Also, people involuntarily transformed into animals are a gray area in regards to the geneva conventions.

Yeah, but a catapult, while archaic, is technically a weapon of war. And I think GP was more concerned with the soldiers in the besieged city who were having lawyers thrown at them.

Re:That's no pig...

[OneAhead]

Slip of the keyboard - I meant "Geneva protocol" http://en.wikipedia.org/wiki/Geneva_Protocol

And yes, parent got it right. No-one, civilian, soldier or terrorist, should be exposed to the risk that one of the lawyers survive being catapulted into the city. Imagine the sheer horror - you cannot even get out because of the siege.

Dream

[ceraphis]

I wonder if this may ever escalate into being allowed to legally download a torrent of a DVD you own but have broken? Yeah...a guy can dream :(

Re:Dream

[tsa]

But does this ruling mean you're now allowed to circumvent the region code on DVDs so you can watch a DVD you bought in Europe in the US?

Re:Dream

[twidarkling]

That is a ruddy good question. I've always thought region codes were rather stupid, personally, though I know why they're used.

Re:Dream

[couchslug]

Torrenting is usually (unless all you do is leech) simultaneously redistributing while downloading.

Re:Dream

[hedwards]

Doubtful, that would only happen if the DVD is a license and not a copy. What you can however do is copy DVDs for back up. And that's more what the sort of thing this ruling speaks to.

Re:Dream

[PRMan]

I wonder if this may ever escalate into being allowed to legally download a torrent of a DVD you own but have broken? Yeah...a guy can dream :(

Actually, the judge mentioned this possibility in the Tenenbaum case. The problem I see is that you are almost certainly uploading it to other people who are not licensed.

Re:Dream

[mlts]

Even better, disable the UOPs so one doesn't need to sit through 30 minutes of ads before hitting the main menu? UOP was meant to just show the big FBI notice, not protect the ads.

Re:Dream

[Anonymous Coward]

"UOP was meant to just show the big FBI notice, not protect the ads."

I'm sure the use for ads was considered before UOP was ever implemented.

Re:Dream

[silas_moeckel]

Like many bad things that have come down the pike. They added it into the spec with a think of the children line and nothing to prevent it from being abused. Digital TV added a government figure wants you to watch something code that forces the TV to change to that channel and stay there, It's supposed to be used for critical bits and I'm sure happy I know there might possibly be a tornado several hundred miles from me in English then again in Spanish repeated several times. Can we not assume that people are sufficiently scared by some FBI warming about the evils of pirating movies that they just bought/rented legally? If you make a piece of tech and get it widely distributed with feel good make a politician or any other sales and marketing guy happy they will abuse it.

Re:Dream

[tsa]

Oh I hate that so much. I bought all Harry Potter films in the cheap version, and every time I want to watch one of them I have to sit through a clip that tells me not to steal movies. I BOUGHT them you moronic retards! Can I just watch the movie now?!!

Re:Dream

[91degrees]

Nope.

The fact that this is and always has been legal does though, as long as you do so without making a copy of the DVD.

Re:Dream

[PerformanceDude]

Well - at least in Australia that part is enshrined in law. The ACCC (Australian Competition and Consumer Commision) ruled that region codes are anti-competitive and therefore it is legal to bypass them. Consequently you can almost always obtain (legally) region code unlock codes in Australia. +1 for common sense!!

Re:Dream

[PerformanceDude]

I wish I had mod points. I would mod you right to the top!!!

Re:Dream

[SoTerrified]

You PAID for the movies, so of course you're entitled to a "less than the best" quality version.

The pirates? They have perfect crystal clear copies and when they press 'play', the movie plays without having to sit through any ads.

People aren't stupid MPAA. They want the best quality recording. Heck, you've got a business model where you charge more for the same thing and lots of people pay it. But you've insured that the absolute *best* quality is the version that gives you no money. You've created this situation, so my sympathy is limited.

Before you get too excited...

[TubeSteak]

Conclusion. VI.
For the foregoing reasons, [1] we AFFIRM the district court's grant of
GE/PMI's Rule 50(a) motion dismissing MGE's DMCA claim. [2] We also AFFIRM
the district court's grant of a permanent injunction against GE/PMI's use of
MGE's software and trade secrets. [3] We REVERSE the district court's denial of
GE/PMI's Rule 50(a) motion on MGE's copyright infringement, unfair
competition, and misappropriation of trade secrets claims for MGE's failure to
prove damages under 17 U.S.C. 504(b) and Texas law, [4] and RENDER a takenothing
judgment for MGE.

GE/PMI already paid for what they've done (the Rule 50 motions) and the injunction effectively means they'll either have to setup a new support contract or replace the UPS systems.

Re:Before you get too excited...

[tibit]

At this point, GE/PMI spent more money in legal expenses and fines than it'd cost them to reverse engineer the damn UPS devices and have their own software/firmware written for them. This isn't rocket science. Some managers at GE should be sternly reprimanded for not doing a cost/benefit analysis and not getting a couple engineers on a project to keep the UPSes going with their own, in-house software.

This opens a lot of doors

[erroneus]

Anything DeCSS related just got opened. I can RIP DVDs legally if I own them. This also means that people can build DVD/hard drive juke boxes for home use and sell them where previously, we have heard that such products were blocked due to DMCA threats and claims.

This is a good thing. I expect to see this fought hard.

Re:This opens a lot of doors

[s0litaire]

Think it's more like Linux users will be able to use "open source" programs to play Blu-Ray disks legally.

As it stands, it's illegal to rip/copy the Blu-Ray to another format for storing or viewing.

However this ruling makes it legal to break the encryption just for the purposes of playback. (The intended function of the disk is for playback).

But what do I know! IANAL!

Re:This opens a lot of doors

[sangreal66]

I don't think so. The ruling specifically touches on this:

Here, MGE has not shown that bypassing its dongle infringes a right protected by the Copyright Act. MGE’s dongle merely prevents initial access to the software. If no dongle is detected, the software program will not complete the start-up process. However, even if a dongle is present, it does not prevent the literal code or text of MGE’s copyrighted computer software from being freely read and copied once that access is obtained; there is no encryption or other form of protection on the software itself to prevent copyright violations. Because the dongle does not protect against copyright violations, the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA.

IANAL, but I don't believe you can apply this same logic to DeCSS

Re:This opens a lot of doors

[XanC]

The trouble with that is that GE's "circumvention" allowed them to use the product, but had no bearing on their ability to copy the product.

With DVDs/Blu-Rays, there's no distinction: the same "device" which allows you to "use" the product also allows you to copy it.

Or am I wrong about the GE case?

Re:This opens a lot of doors

[icebraining]

According to the Wiki, you could already rip the DVDs. It was illegal to make and distribute the tools to rip such DVDs, though.

Re:This opens a lot of doors

[bcmm]

They could have installed the software on multiple machines without having multiple dongles, which might count as copying.

Re:This opens a lot of doors

[PRMan]

Good luck proving that I circumvented the protection on my own DVDs in my own house...

Re:This opens a lot of doors

[sumdumass]

Yes,
That would count as copying unless the multiple machines were necessary to the activation of the machine (memory or ram disk) or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Or
with respect to machine maintenance in which
(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.

Re:This opens a lot of doors

[shadowfaxcrx]

So does that mean I can now download cracks for software I buy so I can bypass the dumbass copy protection that keeps me from playing the game I bought?

Re:This opens a lot of doors

[Kjella]

Actually, that interpretation to me sounds like nonsense. You can very well copy a DVD image without DeCSS'ing it, and then use DeCSS on-the-fly to play it. The "copy protection" of CSS depends on the CSS key being only in a few approved devices just like this software only works with approved dongles. If it's not a violation of the DMCA to turn an unusable copy into a functional copy, then effective DeCSS doesn't protect against copyright violation either.

Re:This opens a lot of doors

[Gorath99]

IANAL, but I did have a law class at university where they stated that running software is in practice considered to fall under copyright, as code is copied to memory before execution.

Of course, this is a total perversion of all intentions behind copyright, but that isn't something that lawyers seem to care about...

Re:This opens a lot of doors

[Captain Centropyge]

Why should it matter that the same device can be used to view or copy a disc? People can still break encryption to view the Blu-Ray (and even make personal backup copies). You just can't go around selling the copies for a profit or charge for a viewing. How is it really much different than a dual-deck VCR or a CD/DVD copier?

Re:This opens a lot of doors

[XanC]

Because it could be claimed that GE's "infringement" is okay because it did NOT allow them to copy anything, whereas a Blu-Ray decrypter WOULD allow copying, that might be an illegal circumvention device.

Re:This opens a lot of doors

[maxwell demon]

Well, the spyware that was silently installed from that DVD accurately recorded your action :-)

Re:This opens a lot of doors

[zzsmirkzz]

You can very well copy a DVD image without DeCSS'ing it

This is true, and is also true (I believe) with Blu-Ray protections as well. The CSS encryption does not prevent copying at all, not even a little bit. For anyone who understands the technology and how it works it is rather obvious that CSS encryption only prevents/limits playback of the content. What prevented copying (at the beginning) was the lack of consumer grade DVD writing hardware/software of the same capacity (dual layer DVDs). The encryption has done, and will continue to do, nothing to prevent copying, it is working as it was designed, to prevent use (play back). It does nothing to prevent you from making a 1:1 bit-for-bit copy of the original which is all you need to do for personal use.

Re:This opens a lot of doors

[steelfood]

When use requires copying (to memory), the question becomes, which one trumps the other, use or copy?

I would think that use trumps copy, but it's only from a common sense perspective. I don't know if there's actually precedent for that.

Re:This opens a lot of doors

[sabt-pestnu]

In the same way that a software patent construes a program as "a device", wouldn't the distinction depend on "the device"? That is, I think a linux dvd player (currently disallowed because of CSS restrictions) would fall under this ruling, but a CSS-stripper or DvD-to-MP3 converter *might* not.

Re:This opens a lot of doors

[butlerm]

The court held that "The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."

CSS is primarily an access control technology, not a copy control technology. Using a tool like DeCSS for the purpose of viewing a DVD does not violate anyones copyright, and is therefore, following the logic of the court, not a violation of the DMCA. The court here was actually following a precedent set by the court of appeals for the federal circuit in Chamberlain v. Skylink (2004). That court said:

The essence of the DMCA's anticircumvention provisions is that 1201(a),(b) establish causes of action for liability. They do not establish a new property right. The DMCA's text indicates that circumvention is not infringement, 17 U.S.C. 1201(c)(1) ("Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."), and the statute's structure makes the point even clearer. This distinction between property and liability is critical. Whereas copyrights, like patents, are property, liability protection from unauthorized circumvention merely creates a new cause of action under which a defendant may be liable

In other words, this appears to be old news. It appears to have been legal to use DeCSS to view a DVD in the United States at least since 2004, and arguably earlier. I am glad the court knows how to read 1201(c)(1) because I am sure many have read the same passage in the past and didn't realize it applied to the DMCA _itself_.

what about the "trafficking" prong?

[l2718]

Note that in this case GE is a large company which has within it the know-how to break copy protection. But even if GE was within their rights to circumvent the dongles, it would still be illegal for them to give the software solution to anyone else -- even if the present ruling stands and the recipient would be allowed to break the protections themselves.

The real problem with the DMCA is that it criminalizes "trafficking" in anti-circumvention technology, even when both the provider and the recipient intend to make legal copies. So this ruling actually means basically nothing to individuals, and very little to companies (except for those that have in-house engineers capable of reinventing the wheel).

At the bottom there's no way for the courts to fix the DMCA, since it's likely within Congress's powers to enact and it's not up to the courts to second-guess Congress about the policy choices – no matter how bad they were. The only way to fix the DMCA is for Congress to fix it.

Re:what about the "trafficking" prong?

[YesIAmAScript]

The real problem with the DMCA is that it criminalizes "trafficking" in anti-circumvention technology, even when both the provider and the recipient intend to make legal copies.

I think you mean it criminalizes "trafficking" in circumvention technology.

Re:what about the "trafficking" prong?

[Blue Stone]

>it would still be illegal for them to give the software solution to anyone else

>the DMCA is that it criminalizes "trafficking" in [...] circumvention technology

They used the software to *use* the locked-down content, not to violate the copyright, therefore the software is not a circumvention tool (for violating copyright) and can be distributed without breaching the DMCA.

Re:what about the "trafficking" prong?

[sjames]

Not necessarily. It helps establish a legal use case for the technology. It at least moves it into the same gray area as 'video stabilizers'.

Re:what about the "trafficking" prong?

[sangreal66]

But even if GE was within their rights to circumvent the dongles, it would still be illegal for them to give the software solution to anyone else -- even if the present ruling stands and the recipient would be allowed to break the protections themselves.

Actually, a key part of the ruling is that GE did NOT break the protections themselves.

MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim. See id. (“[T]he DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.”).

Re:what about the "trafficking" prong?

[GWRedDragon]

At the bottom there's no way for the courts to fix the DMCA, since it's likely within Congress's powers to enact...

Should not the discussion of technological device and software design, and how to break certain ones, be protected free speech and thus this provision be invalid under the 1st amendment?

Re:what about the "trafficking" prong?

[countertrolling]

The only way to fix the DMCA is for Congress to kill it.

But first we have to fix congress

Re:what about the "trafficking" prong?

[countertrolling]

In the US ANY infringement on speech is invalid under the 1st Amendment, but we don't have anybody that will uphold the law.

So are backups legal again?

[zwede]

Does this mean that it is now legal to circumvent copy protection to make a backup?

Re:So are backups legal again?

[Anonymous Coward]

If you have $782 Billion in assets, yes.

Re:So are backups legal again?

[Anonymous Coward]

IANAL, but from what I can see, the answer is "no". What it seems to imply is that you can work around a hardware lockout in order to make use of a product in your possession.(Analogy: You own a padlocked toolbox, and you lost the key, you can pop the lock with bolt cutters) Whether their continued possession of that product is legitimate is not what was at issue, that would be a matter for a separate suit, which in this case may be subject to existing contract law. (Analogy: inside the toolbox is your cousin's wrench, he can sue you to recover the wrench)

Oh, fair use might allow you to backup something you own, so long as 1) it's actually yours to own and 2) you don't circumvent any encryption algorithms in the process and 3) you're not violating someone else's copyright in making that copy.

As I understand it, the DMCA also prevents you from changing formats of the material you intend to copy. VHS to VHS might be ok, (subject to the prior restrictions) DVD to DVD might also be allowed (same restrictions) but VHS to DVD or DVD to VHS is a big no-no.
Obtaining permission from the copyright holder may or may not help, either. If in doubt, best thing is just not to run the risk.

What's more troublesome is the ability to reclaim copyright from things that are in the public domain. Now, a bunch of things that WERE legal may not actually be so, anymore, and how the heck do you know the difference?

US copyright law is fundamentally broken, for many reasons, retroactive reclamation of copyright is only one example.

Re:So are backups legal again?

[AusIV]

I think a more likely question is "does that mean it's now legal to circumvent copy protection to play content?" It sounds like the ruling found that it was legal to circumvent technological measures so that they could use the product - I don't know that making a copy of the product would necessarily qualify as use, but I imagine playing back a DVD or BluRay disc would.

What's Right

[dontgetshocked]

So if the intention of the the software owner was to protect it's interest which is the case here then if you bypass that you are wrong and and not adhering to your word. Just as a lie is a lie with NO color differences or little or big ones,just a lie period so goes the person or persons who attempt to bypass this.

Re:What's Right

[XanC]

The software owner was GE. They bought it.

Bottom line

[ArchieBunker]

GE has deeper pockets than the other company.

We bring good things to life.....

[BatGnat]

Like the GE M134 Mini-Gun...

Re:GE has deeper pockets

[snikulin]

Shut up and enjoy the ride.

I read it differently...

[earnest murderer]

The judge seemed clear to me that the previous court's award for the continued use of the software was correct. But that the DMCA did not in itself entitle them to further damages.

Re:I read it differently...

[riT-k0MA]

So when can someone get in trouble with the DMCA?

From the moment they're born to the end of the universe.

Re:I read it differently...

[wisty]

So when can someone get in trouble with the DMCA?

From the moment they're born to the end of the universe.

Hold it right there ... where did you get those chromosomes from? Are they properly licensed?

Re:I read it differently...

[Albatrosses]

Yeah, we've detected you're infringing on 17 of Monsanto's gene sequence copyrights. Now pay up!

HDCP?

[Dusty101]

Can any Slashdotters with legal know-how are to comment on any implications this ruling might have for HDCP stripper dongles/boxes?

Re:HDCP?

[butlerm]

My understanding is that such boxes may not be able to be "trafficked in" if the primary use of such devices is copyright circumvention. But you should be able to use them personally without violating the DMCA, as long as you are not using them to make an illegitimate copy of something.

So the real question is are such devices often / primarily used to make illegal copies, or are they primarily used for some other legitimate application, e.g. fair use.

UPS software that's protected by a dongle???

[Linker3000]

WHA? Next GE will be in trouble for copying their Lotus 123 V1.0 floppies. Seriously, a DONGLE for UPS software? I guess the software's pretty special..or...??

Re:UPS software that's protected by a dongle???

[Fieryphoenix]

Yes, it actually generates more power than is consumed. If it weren't for the dongles limiting the amount of power released, the earth would melt.

Re:UPS software that's protected by a dongle???

[scottbomb]

It looks like GE made a rather foolish choice in UPS software. I would never, EVER "subscribe" to software. Once I buy it, it's mine, indefinitely. Yes, I may be "licensing" it (according to those "terms and conditions" no one bothers to read), but I fully expect to be able to use it tomorrow, a year from now, and forever without having to repeatedly ask the permission of (and fork over money to) the author.

Re:UPS software that's protected by a dongle???

[tibit]

I don't know the details, but GE's decision could have been hardware-based -- the software simply came with good hardware, and that was why it got used. It's silly that they didn't simply chose to reverse-engineer the heck out of those UPS systems, and come up with their own software for them. It'd be way cheaper at this point. Suppose you get 3 good engineers on such a project, at total cost (benefits and all) of $200k/year. Assume they'd be done within a year. That's $0.6M -- pretty cheap, IOW.

"Using" software involved copying

[l2718]

They used the software to *use* the locked-down content, not to violate the copyright, therefore the software is not a circumvention tool (for violating copyright) and can be distributed without breaching the DMCA.

For the anti-trafficking provision what matters is the potential uses of the tool. That GE as the initial develper used the tools for legitimate purposes is beside the point -- as long as the tools can be used to circumvent copyright protection, they fall under the no-trafficking prohibition. For example, it is perfectly legal to copy the works of William Shakespeare. But it is not legal to break copy-protection on specific editions of his works, even for the purpose of making legal copies. Second, in the US the legal rule is that running software involves copying (copying the binary from storage media to RAM) and therefore requires specific authorization from the copyright owner. In other words, there exist a kind of copyrighted work where "using" the content inheretly involves copying. I think the legal rule is wrong, but as long as it stands you cannot separate "using" and "copying".

Re:"Using" software involved copying

[HungryHobo]

If that were the case then the fact that the dongle prevents the program from running (and as such prevents it/parts of it from being read into memory) would be enough to be covered under copyright.

Re:"Using" software involved copying

[hedwards]

Citation needed, copies to RAM are not counted as copying for the purposes of copyright law in the US.

Re:"Using" software involved copying

[gnasher719]

Citation needed, copies to RAM are not counted as copying for the purposes of copyright law in the US.

Wrong. It counts as copying. But it is copying that is allowed by law _if you have the right to use the software_ in the first place, just like making a backup copy. If you don't have the right to use the software, then every time you load the software into RAM you commit copyright infringement.

Re:"Using" software involved copying

[sumdumass]

I guess some clarification is needed here. The law actually says it's not a violation is the "owner of a copy" of a copyrighted work loads the program into memory as part of using the program.

I guess the distinction is that if you are not an owner of the copy, then it counts as a copy also. If you are the owner of a copy, then it's expressly not counted. And I need to make sure we are clear that we are talking about a copy of the program, not the copyrights to the program. You're right except that I think the lack of distinction was causing some issues for people.

Re:"Using" software involved copying

[Artraze]

Actually, AFAIK the present ruling (see Blizzard's Glider case) is that a copy to RAM is a true copy that's not even covered under fair use and is only allowed because of the EULA. Therefore if you violate the EULA, or haven't agreed to one, making a copy to RAM is a violation of copyright.

Finally

[Anonymous Coward]

Good, finally something to stop such nonsense.

I imagine these UPS systems are incredibly expensive as it is, and the maker does something so they're limited use? Which was probably discovered AFTER the fact. To me, that's highway robbery, you buy a machine, then have to upgrade a license?

I have to say, even though GE is one of the big evil companies that most slashdotters hate (or should hate, given hate towards companies like microsoft, GE makes them look like angels) They had a right to fight this.

Sadly, they only won because they're so damn huge and have a lot of sway in the government *AND* media. If this had been, say, you or me, we'd get taken to the cleaners.

Funny how the DMCA is coming back to bite the same companies who pushed for it, in the ass.

Re:Finally

[mysidia]

Actually, it seems the software is required by technicians to SERVICE UPSes, because access to calibrations and voltage controls are restricted on the UPS and only available through the software. And the GE company being sued is a company that sells UPS maintenance and repair services.

I would equate this to vehicle manufacturers using encrypted communications with the cars' computers, to ensure only authorized dealers and servicers can possibly have access to diagnostic information.

So their technicians would be using the software while the company receives payments from other organizations for UPS repair/maintenance.

So they are (possibly) competing against the company that manufactures the UPS for repair, management, and maintenance services, as not an "authorized" servicer of their UPSes.

The software is not generally available to the public, and it sounds as if they might have obtained it through an unapproved channel.

There is also a possibilitythey might be providing service for UPSes that are not under service contracts with the manufacturer.

Hm.. http://www.law.com/jsp/tx/LawDecisionTX.jsp?id=1202463809581

I. MGE manufactures several lines of UPS machines, some of which require the use of MGE's copyrighted software programs Pacret and Muguet during servicing. This software fixes calibration problems more quickly than traditional manual servicing techniques. Without the software, a service technician can still partially service an MGE UPS machine, but a number of critical procedures (including recalibration and adjustment of voltage levels) can only be performed through use of the software, which works only on MGE-manufactured devices.

The software requires connection of an external hardware security key (called a "dongle") to the laptop serial port. Each dongle has an expiration date, a maximum number of uses, and a unique password. ... If the protocol exchange is successful, MGE's software proceeds to collect system status information for the technician.

Years after MGE introduced its security technology, a number of software hackers published information on the internet disclosing general instructions on how to defeat the external security features of a hardware key.

...
PMI is a critical power service company servicing a variety of brands of UPS machines, including MGE UPS machines. PMI initially subcontracted MGE to perform software service on MGE UPS machines, but sometime before June 2000, a group of PMI employees obtained at least one copy of MGE's software from an unknown source. GE acquired PMI in 2001.

"Licencing" a product.

[Anonymous Coward]

If Company X says you're merely licensed, doesn't that mean that they now need to provide replacements in perpetuity? Lets say my priceless collection of 8 tracks has finally lost its magnetism. Isn't that company now required to provide me with replacement 8-tracks, at cost? Never mind that 8-tracks are a dead tech, I paid the license for 8-tracks, therefore they are OBLIGATED to make sure I keep that format.

Or even games? Shouldn't companies be obligated to support EVERY game they sell to valid "licensees", in perpetuity (until they die)? Game servers must be always up, tech support, etc. After all the game never said it's a limited license for support and features.

Companies can't have it both ways. If they only they own it and merely license, then they need to license and support forever, or give up this notion that "licensees" cannot do whatever with it.

Bypassing Dongles ~= Bypassing Media Checks

[JakFrost]

This is the equivalent of buying a game or a program that requires a media check (e.g. "Insert DVD/CD-ROM to start the game") and then downloading a modified executable from GameCopyWorld.com to play your own game without the media check. Many people have been doing this for a long time and this ruling sets a precedent that effectively legitimizes the usage of these helpful executable.

The problems with GCW is that a lot of times they include a full copy of the modified executable instead of just a small patcher or cracker program so they are still violating the copyright on the original executable code by distributing it without a license from the authors. The quick solution would be to download the patchers or crackers but since many of those are built using pre-made small assembly or C modular code (not shared libraries or DLLs) that has also be used by virus makers many of these legitimate pieces of modular code have been flagged by anti-virus companies as viruses just because they were used to make them. This is why your keygen, patcher, cracker executable will end up flagging anti-virus warnings immediately on download or usage or even months or years after you've successfully used them without getting an infection since their modules were flagged later. So GCW has a hard time with false-positive virus warnings and that's why they show that web page on download about their code being 100% clean and still allow download of full executables instead of just the patchers.

Re:Dongle Freedom, I guess

[DragonWriter]

What this would appear to mean is that any use of a dongle by a program for licensing is now null and void. If a "remover" tool is available to eliminate the need for the dongle, then anyone is free to use this.

Well, no, it doesn't mean that "anyone is free to use this", it just means that its not a violation of the DMCA.

But simply disabling the dongle would appear to be perfectly legal.

That it doesn't violate the DMCA doesn't mean that it could not be a violation of some other legal restriction (such as those imposed by a contract.)

For expensive software, this pretty much means only a single copy ever need be purchased and the customer can do this with impunity.

No, it doesn't. Believe it or not, license restrictions on expensive software could be enforced through the courts before the DMCA existed, so finding that bypassing a particular technical mechanism isn't a violation of the DMCA does not suddenly make it so that customers may use copies of expensive software beyond what their licensing agreement allows with "impunity".

But again, once you enshrine the right to disable dongles you have opened the door to unlimited redistribution.

No, you haven't. Copyright law already prohibits unauthorized reproduction (a necessary precursor to unlimited distribution), and copyright holders can enforce those provisions in the courts whether or not they can use the DMCA in the courts to punish bypassing dongles.

While you might try to equate this to legal vs. illegal use of a hammer where murder isn't a legal use I would frame this far closer to the idea of someone marketing full-size guillotines for trimming "Really Big Cigars" and attempting to say that the legal vs. murderous use of such a device outweighs any other interest in the matter.

You might, but that wouldn't be any different than the hammer case, and indeed devices that amount to "really big guillotines" (only generally automated and much more suited to mass decapitation, if that was what someone chose to use them for, are not only legal but widely used in various industries.

Re:Dongle Freedom, I guess

[butlerm]

What this would appear to mean is that any use of a dongle by a program for licensing is now null and void. If a "remover" tool is available to eliminate the need for the dongle, then anyone is free to use this.

Not quite. If the software was obtained by means of a legally binding _contract_ with the original manufacturer, the "license" (contract) terms still apply. What this decision says is that the DMCA does not apply to an end user unless the user is circumventing a technological protection measure for the purpose of violating someone's _copyright_ (which they were not). They were violating the "license" agreement, and paid dearly as a consequence, but did not violate the DMCA, according the court.

Unfortunately, a "remover" tool may still be legally prohibited as an anti-circumvention device on other grounds, especially if its primary use is to help people do things that actually do violate someone's copyright. So the distributor of such a tool could be in trouble. An end user who uses such a tool but who does not use it to make an illegal copy, based on this decision appears to be in the clear.

Re:A modicum of common sense prevails (at last)

[KevMar]

Well, it is still not legal to keep using the software after the contract is up if it required to keep your software license. It is just not a DMCA violation to do so.

How about that law opening up car repair Will othe

[Joe The Dragon]

How about that law opening up car repair Will other stuff like this fall under it?

17 USC 117

[tepples]

They made a copy of the software from disk to ram to run it.

Which is not an infringement under U.S. law: 17 USC 117.

Learned something new today...

[rnturn]

And that's one more question I'll need to ask prospective hardware suppliers: Is any proprietary software required in order to use your hardware and, if so, is it only available and usable if we keep up an annual support contract? (Related question: Is a dongle required? There is? Well... just look at the time! Have a nice day.)

I could see this for large software packages (think RDBMS and other "enterprise"-level software) where one might need to keep a support contract in place in order to gain access to the latest patches---especially the security-related ones). (Not that I've seen a piece of software like that require a hardware dongle to enforce that. It's usually just something in the vendor's database referred to when you place the support call.) But any hardware that requires a piece of special software in order to access the device and have that software expire at the end of a support contract is, IMNSHO, wa-a-ay over the line. I'd never buy from a vendor that tried to foist that on their customers. I suppose they think it's just fine to sell a product that is easily supported by the customer but then force them to pay for the vendor to provide that support. The customer will see this as a kind of extortion. Too bad for this vendor that their business practice is now widely publicized. It's not like there aren't other UPS vendors to turn to.

Re:Dongle Freedom, I guess

[PPH]

For expensive software, this pretty much means only a single copy ever need be purchased and the customer can do this with impunity. There is considerable interest in this as today budgets are tight and even the most ethical organization is going to be sorely tempted.

But its still a copyright violation. And the same economic pressures that are tempting companies to bend the law are seeing quite a few employees out the door. The last thing you want is a disgruntled employee that has knowledge of such copyright violations and the phone number of the BSA handy.

Dongles

[cyberpunkrocker]

What amazes me most is that someone actually buys something protected by hardware dongles...??? I wouldn't. Ever.

Re:Dongles

[masher_oz]

Depends on the software. I use one software package that is pretty much the best type in the world. It has a dongle. For me to write another program that is as good as the one I already use would just stupid. The licence cost vs the new development cost just wouldn't be worth it...

Blame Texas!

[Mathinker]

The judge did not say it was okay, only that MGE failed to provide sufficient proof of damages (they tried to claim damages against the total revenue of the division and not just revenue related to servicing MGE UPS products)

And in a totally ironic turnaround, part of the judge's justification stripping MGE of the $4+M judgment was that "Texas courts have not adopted the RESTATEMENT (THIRD) OF UNFAIR COMPETITION in its entirety".

So MGE lost because of its forum shopping (in part). Priceless!

Scope limitation

[91degrees]

The scope of the DMCA has been tested many times. It doesn't include garage door openers. It does include DVD ripping software. It turns out if apparently doesn't include circumventing a dongle.

Law swings back?

[piotru]

If upheld, the ruling may illustrate an interesting hypothetical tendency of an overreaching law being gradually cancelled.
Is there a study of law dynamics? Can we describe the oscillations as sinusoid of sawtooth? Did I have too much coffee today?

Re:Dongle Freedom, I guess

[tibit]

Many dongle-protected systems do a dongle check on startup only. The trivial way to go around that is to fire up the software in a dedicated VM, then take a snapshot after it starts up, and you're done -- just roll it back to re-start the application. Heck, some CAD systems start so slowly that re-starting say a 2GB VM is faster!

after the dongles expired ?

[viralMeme]

Why did the UPS require a dongle. Why did the dongle have an expiration date?

read the solution here

[viralMeme]

Don't buy devices that come with timed expiration date software controlled dongles!

But still the license based on copyright?

[leuk_he]

But still the license to use software (independent of the dongle ) is based on copyright. You were allowed to copy the software on the computer based on the license. And the license probably said you need to use the dongle.

Circumventing the dongle might/might not be illegal, but the license to use the software was violated. Breaking DRM will still leave all other copyright laws (On which the GPL is also based...)

The law speaks about an effective control to access of the works, but once a DRM measure is broken is is by its very definition no more effective? Especially CCS is very broken nowadays, it is hardly more effective than a single ROT13.

The purchaser was within his rights...

[scharkalvin]

GE had purchased the right to use the software. When the dongles died, they manged to use the software by other means. Since they HAD the rights under their license agreement to use the software bypassing the dongles was not illegal. If they had done so to use an illegal copy that would have been another story.

By this thinking, it is LEGAL for me to us a certain piece of software to play DVD's that I own on Linux. Also developing software to crack the copy protection on BD's for use on BD disks I OWN would also be LEGAL. We have a legal foot in the door here folks!

Re:The purchaser was within his rights...

[butlerm]

GE's right to use the software had expired, and they will very dearly for that. GE escaped DMCA liability in this case because (1) they were not making a "copy", and (2) because the DMCA has been held not to prohibit "circumvention" except when someone's copyright is being violated.

(e.g. if someone is making an illegal copy, the DMCA adds additional liability, but does not prohibit a user from circumventing copy access control to do something that does not violate anyone's copyright). No new property right for the copyright holders, just an secondary penalty when the existing rights are violated. This was first held in Chamberlain v. Skylink (2004).

Re:A modicum of common sense prevails (at last)

[Sparr0]

A license, that being permission to do things otherwise forbidden by the copyright act, is not required to use the software, as stated in the ruling and quoted in the summary.

Re:A modicum of common sense prevails (at last)

[Courageous]

No, not by the copyright act, but the person you are responding to did not say so. To violate a contract is to violate a contract, however, and I think that these things are considered contracts, not merely licenses.

C//

Not DMCA... EULA!

[Duggeek]

Precedent, schmecedent... the foundation of the litigation is the determination.

Why is a software publisher trying to enforce a concurrent-users limit under the DMCA!? It should be as Contract Law under the terms of their own licensing agreement... you know, the mile-long writ of legal-ese that constitutes a binding agreement for using said software?

Good call, Judge. The DMCA has nothing to do with the per-user security of a particular software platform.