In this Emerging Issues commentary, Thomas C. Carey, a partner at Sunstein Kann Murphy & Timbers LLP, discusses a recent federal court case, MGE UPS Sys. v. GE Consumer & Indus., 612 F.3d 760 (5th Cir. Tex. 2010), and its revised opinion, MGE UPS Sys. v. GE Consumer & Indus. Inc., 622 F.3d 361 (5th Cir. Tex. 2010). He states that the revised opinion had deleted certain troubling analysis of what constitutes "access" to software. He writes:
"In our September IP Update, we reported on the Fifth Circuit's opinion in MGE UPS Systems Inc. v. GE Consumer and Industrial Inc., 612 F.3d 760 (5th Cir. Tex. 2010), involving software that had been hacked so that it would not check to see if an authenticating dongle was attached to the computer on which the software was running. The sole issue on appeal was whether this conduct violated the DMCA. To our surprise, the Fifth Circuit ruled that it did not."
. . . .
"Well, someone on the Fifth Circuit must have had second thoughts about their startling opinion. On September 29, it was quietly replaced with a revised opinion (622 F.3d 361 (5th Cir. Tex. 2010)) that deleted the troubling analysis of what constitutes "access" to software. Instead, the court reaches the same conclusion - no DMCA violation - by noting that the record did not show that the company running this hacked software was the company that had hacked it."
"This opinion makes no more sense than the one that it replaced. How can it be said that running software that has been hacked not to check for a dongle does not fit the description of what the DMCA forbids? After all, the list of DMCA requirements is slim."
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