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

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.