In a case involving attempted use of the Digital Millennium Copyright Act (DMCA) to prevent repair and refurbishment of machinery, the U.S. Court of Appeals for the Federal Circuit (applying First Circuit law) recently held that accessing and using password-protected diagnostic software to maintain a machine does not constitute copyright infringement or improper circumvention under the DMCA. Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Case No. 04-1462 (Fed. Cir. Aug. 24, 2005) (Bryson, J.) (Rader, J., dissenting).
Storage Technology (StorageTek) manufactures automated tape cartridge libraries that include both "functional" software, necessary to run the machine, and "maintenance" software, used by StorageTek to identify faults in the operation of the machine. These two sets of software are intertwined. Both are loaded into memory when the machine is booted up and both are copyrighted. StorageTek licenses only the "functional" code to owners of the libraries, not the maintenance code.
Custom Hardware Engineering & Consulting (CHE) maintains and repairs StorageTek machines. To do so, CHE uses a "code cracking" system to bypass the password protection of the maintenance code and access fault information as it is generated by the maintenance software during normal operation of the machine. StorageTek sued, alleging CHE’s practice constituted copyright infringement and violated the anti-circumvention provisions of the DMCA. The district court issued a preliminary injunction in favor of StorageTek. CHE appealed.
Applying First Circuit law, the Federal Circuit held CHE did not violate the DMCA because it uses the maintenance code for the "purposes only of maintenance or repair" of the machine and, therefore, comes within the safe harbor of section 117(c) of the Copyright Act (17 U.S.C. §117(c)), which allows unlicensed persons to activate machines to maintain and repair them. The safe harbor was designed to protect service providers from liability for copyright infringement for turning on a machine in order to repair its hardware.
The Court also held CHE was likely to prevail on its contention that StorageTek’s license agreement with its customers allows CHE, as the customers’ agent, to copy StorageTek’s software into RAM during the activation of the customers’ tape libraries. The machine fault information CHE thereafter intercepts and uses is not a protected trade secret.
Judge Rader’s dissent charged the majority’s decision "destroys copyright protection for software that continually monitors computing machine behavior." Judge Rader pointed out the maintenance code could be disabled without affecting the operating system and, accordingly, CHE’s use of the maintenance code falls outside of the protections of the DMCA repair safe harbor. Judge Rader also disagreed with the majority’s analysis of StorageTek’s trade secret claim, saying the secret consisted not only of the error codes but the information they conveyed in a given instance about the fault with a particular machine.
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