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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."
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Court Rules That Bypassing Dongle Is Not a DMCA Violation

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  • by JoshuaZ (1134087) on Sunday July 25, 2010 @02:58PM (#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 Anonymous Coward on Sunday July 25, 2010 @02:58PM (#33022992)

    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?

  • by Derekloffin (741455) on Sunday July 25, 2010 @03:00PM (#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.
  • by l2718 (514756) on Sunday July 25, 2010 @03:17PM (#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.

  • by arivanov (12034) on Sunday July 25, 2010 @03:21PM (#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 Anonymous Coward on Sunday July 25, 2010 @03:36PM (#33023258)

    If you have $782 Billion in assets, yes.

  • by snikulin (889460) on Sunday July 25, 2010 @03:39PM (#33023280)

    Shut up and enjoy the ride.

  • by earnest murderer (888716) on Sunday July 25, 2010 @03:46PM (#33023336)

    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.

  • by sangreal66 (740295) on Sunday July 25, 2010 @03:48PM (#33023342)

    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)

  • by Kristian T. (3958) on Sunday July 25, 2010 @03:54PM (#33023378)

    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.

  • by sangreal66 (740295) on Sunday July 25, 2010 @03:56PM (#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

  • by XanC (644172) on Sunday July 25, 2010 @03:58PM (#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 icebraining (1313345) on Sunday July 25, 2010 @04:07PM (#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 Anonymous Coward on Sunday July 25, 2010 @04:14PM (#33023518)

    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.

  • by Anonymous Coward on Sunday July 25, 2010 @04:44PM (#33023686)

    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.

  • by Man On Pink Corner (1089867) on Sunday July 25, 2010 @04:51PM (#33023732)

    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?

  • by martin-boundary (547041) on Sunday July 25, 2010 @04:54PM (#33023752)
    For a sufficiently small planet, it is.
  • by Dunbal (464142) * on Sunday July 25, 2010 @05:00PM (#33023784)

    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:Dream (Score:3, Insightful)

    by couchslug (175151) on Sunday July 25, 2010 @05:03PM (#33023804)

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

  • by PRMan (959735) on Sunday July 25, 2010 @05:12PM (#33023868)

    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.

  • by v1 (525388) on Sunday July 25, 2010 @06:43PM (#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.

  • by PopeRatzo (965947) * on Sunday July 25, 2010 @08:40PM (#33024948) Homepage Journal

    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.

  • by GNUALMAFUERTE (697061) <almafuerte@@@gmail...com> on Sunday July 25, 2010 @08:46PM (#33024966)

    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.

  • by JohnFen (1641097) on Sunday July 25, 2010 @11:08PM (#33025894)

    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.

  • by Anonymous Coward on Monday July 26, 2010 @02:13AM (#33026748)

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

  • by riT-k0MA (1653217) on Monday July 26, 2010 @02:41AM (#33026880)

    So when can someone get in trouble with the DMCA?

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

  • by Sparr0 (451780) <sparr0@gmail.com> on Monday July 26, 2010 @08:29AM (#33028844) Homepage Journal

    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).

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