Software Makers, Take Note: Court Defines "Circumvention" Downward

Hacking a security device in order to use software is not a violation of a law barring the circumvention of technology that "controls access" to copyrighted works, such as software. The Fifth Circuit makes this fine distinction in MGE UPS Sys. v. GE Consumer & Indus., 612 F.3d 760 (5th Cir. Tex. 2010) [enhanced version available to lexis.com subscribersunenhanced version available from lexisONE Free Case Law]. In this Analysis, Kerry L. Timbers of Sunstein, Kann Murphy & Timbers LLP discusses MGE and the issues therein. He writes:

[I]t has typically been held that "cracking" codes in order to access and copy music or movies is a violation of the DMCA [Digital Millennium Copyright Act]. For example, last summer in a highly publicized case involving RealNetworks, a court halted the sale of software that would allow users to copy DVDs to their laptop computers or other devices for viewing.

     In MGE, however, the court distinguishes between the cracking of technological measures designed to prevent access to and use of a copyrighted work, as opposed to measures designed to prevent copying of the work -- and held that cracking security measures that merely prevent access and use are allowed.

     The Fifth Circuit considered a computer dongle, or external security key, that had to be attached to a computer in order to allow the software on the computer to run. The software was used to service uninterruptible power supplies, and GE had obtained a "hacked" version of the software that could run without the dongle and its password. GE admitted that it had used the hacked software in its business, and indeed was found guilty of copyright infringement, although it was never proved that GE itself had hacked the software.

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