1. Home
  2. |Insights
  3. |Booting-Caused Program Code Copying Is Not Copyright Infringement In A Case Of First Impression

Booting-Caused Program Code Copying Is Not Copyright Infringement In A Case Of First Impression

Client Alert | 2 min read | 01.04.06

Custom Hardware Engineering & Consulting, Inc. (“CHE”) repairs data libraries that are manufactured by Storage Technology (“StorageTek”). In order to diagnose problems with the libraries, CHE intercepts error messages that are automatically sent to StorageTek over a network. Although typically password protected, the error messages are susceptible to being intercepted during transmission. In order to intercept such error messages, CHE uses software to trigger the sending of the messages upon rebooting the system. A preliminary injunction was granted against CHE based on a district court's findings that CHE was committing copyright infringement by copying StorageTek's copyrighted program code into the system's RAM upon rebooting, and was violating the anti-circumvention provision of the Digital Millennium Copyright Act (“DMCA”) by circumventing the password-protection scheme used to protect the generated error messages.

Section 117(c) of the Copyright Act provides a safe harbor for the owner of a machine to copy computer program code necessary for the machine to be activated for purposes of maintenance or repair of that machine. In a case of first impression in any court of appeals, the Federal Circuit in Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc. (No. 04-1462; August 24, 2005), vacates and remands a district court's grant of preliminary injunction against CHE. The majority opinion construes the requirement that the program code be “necessary for the machine to be activated” to mean that the program code be required to determine if the system is “working in accordance with its original specification,” as recited in the definition of the term ‘maintenance' under Section 117(d). The Federal Circuit thus finds that CHE is likely to prevail on the issue of copyright infringement since the copyrighted program code that is loaded into memory upon rebooting the data library is not freestanding software, but is rather required to determine if the system “works in accordance with its original specification.”

With respect to StorageTek's DMCA claim, the Federal Circuit finds that the anti-circumvention provision of the DMCA requires that there be copyright infringement, and further that such infringement be facilitated by the circumvention activities in question. Hence, as there is no copyright infringement, there can be no violation of the DMCA. The Federal Circuit further finds that, even if there were copyright infringement, such infringement would not be facilitated by the circumvention activities of CHE because there is no nexus between the interception of the password-protected error messages and a right protected by the Copyright Act.

Insights

Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

View All Insights