Forgot your password?
typodupeerror
The Courts

Court Rules That Bypassing Dongle Is Not a DMCA Violation 266

Posted by kdawson
from the watch-out-you-ink-cartridges dept.
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."
This discussion has been archived. No new comments can be posted.

Court Rules That Bypassing Dongle Is Not a DMCA Violation

Comments Filter:
  • by JoshuaZ (1134087) on Sunday July 25, 2010 @03:58PM (#33022990) Homepage
    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.
    • by arivanov (12034) on Sunday July 25, 2010 @04:21PM (#33023154) Homepage

      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.

      • by Splab (574204) on Sunday July 25, 2010 @04:34PM (#33023246)

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

        • Re: (Score:3, Funny)

          by 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.

        • 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.
    • 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?

    • by v1 (525388) on Sunday July 25, 2010 @07:43PM (#33024340) Homepage Journal

      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.

  • It's the pig le resistance! It's just a little airborne! It's still good, it's still good!
  • by Derekloffin (741455) on Sunday July 25, 2010 @04:00PM (#33023000)
    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.
    • 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.
    • by burris (122191)

      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 wa

  • by stinerman (812158) <nathan.stine@NosPaM.gmail.com> on Sunday July 25, 2010 @04:03PM (#33023014) Homepage

    [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.

  • 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.

    • by Z00L00K (682162)

      Common sense is already blocked in many EULA:s.

    • by Dunbal (464142) *

      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".

      • by hairyfeet (841228)

        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 Window

        • by Rivalz (1431453)

          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: (Score:3, Insightful)

          by Dunbal (464142) *

          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: (Score:3, Interesting)

          by kimvette (919543)

          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/ [downloadsquad.com]

      • by kimvette (919543)

        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.

      • by butlerm (3112)

        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 wh

  • Dream (Score:2, Interesting)

    by ceraphis (1611217)
    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 (Score:5, Interesting)

      by tsa (15680) on Sunday July 25, 2010 @04:19PM (#33023140) Homepage

      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: (Score:3, Insightful)

      by couchslug (175151)

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

    • by hedwards (940851)
      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.
    • by PRMan (959735)

      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.

  • by TubeSteak (669689) on Sunday July 25, 2010 @04:14PM (#33023102) Journal

    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.

  • 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.

    • by s0litaire (1205168) on Sunday July 25, 2010 @04:42PM (#33023302)

      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!

      • by XanC (644172) on Sunday July 25, 2010 @04:58PM (#33023406)

        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?

        • by bcmm (768152)
          They could have installed the software on multiple machines without having multiple dongles, which might count as copying.
        • by PRMan (959735)
          Good luck proving that I circumvented the protection on my own DVDs in my own house...
    • by sangreal66 (740295) on Sunday July 25, 2010 @04:56PM (#33023392)
      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: (Score:3, Informative)

        by Kjella (173770)

        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.

    • by icebraining (1313345) on Sunday July 25, 2010 @05:07PM (#33023476) Homepage

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

  • by l2718 (514756) on Sunday July 25, 2010 @04:17PM (#33023120)

    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: (Score:3, Informative)

      by YesIAmAScript (886271)

      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.

    • >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.

      • 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.

        • 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.

        • by hedwards (940851)
          Citation needed, copies to RAM are not counted as copying for the purposes of copyright law in the US.
          • Re: (Score:3, Informative)

            by gnasher719 (869701)

            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.

          • by Artraze (600366)

            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.

    • by sjames (1099)

      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'.

    • 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

  • GE has deeper pockets than the other company.

  • HDCP? (Score:3, Interesting)

    by Dusty101 (765661) on Sunday July 25, 2010 @04:55PM (#33023386)

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

  • 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...??
    • 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.
  • Finally (Score:2, Interesting)

    by 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,

  • by 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

  • by JakFrost (139885) on Sunday July 25, 2010 @05:49PM (#33023718)

    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 [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.

  • 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 acces

"The value of marriage is not that adults produce children, but that children produce adults." -- Peter De Vries

Working...